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Schriro v. Smith

2005-10-17

https://www.courtlistener.com/opinion/1992717/schriro-v-smith/

https://www.courtlistener.com/api/rest/v3/clusters/1992717/

2005-002

In 1982, an Arizona jury convicted respondent Robert Douglas Smith of first-degree murder, kidnaping, and sexual assault. He was sentenced to death. The convictions and sentence were affirmed on direct appeal, and Smith's state petitions for postconviction relief proved unsuccessful. Smith then filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. In none of these proceedings did Smith argue that he was mentally retarded or that his mental retardation made him ineligible for the death penalty. Smith had, however, presented *7 evidence in mitigation during the sentencing phase of his trial showing that he had low intelligence. The District Court denied Smith's petition for habeas corpus in 1996. Following several rounds of appeals, remands, and petitions for certiorari to this Court (including one successful petition by the State, see Stewart v. Smith, 536 U.S. 856 (2002) (per curiam)), and after we had issued our decision in Atkins v. Virginia, 536 U.S. 304 (2002), the case returned to the Ninth Circuit. Shortly thereafter, Smith asserted in briefing that he is mentally retarded and cannot, under Atkins, be executed. The Ninth Circuit ordered suspension of all federal habeas proceedings and directed Smith to "institute proceedings in the proper trial court of Arizona to determine whether the state is prohibited from executing [Smith] in accordance with Atkins." App. to Pet. for Cert. A-2. The court further ordered that the issue whether Smith is mentally retarded must "be determined . . . by a jury trial unless the right to a jury is waived by the parties." Ibid. The State's petition for certiorari is granted,[*] the judgment of the Court of Appeals is vacated, and the case is remanded. The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith's mental retardation claim. Atkins stated in clear terms that "`we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'" 536 U.S., at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 416-417 (1986); modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures *8 when the Ninth Circuit pre-emptively imposed its jury trial condition. Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

In 1982, an Arizona jury convicted respondent Robert Douglas Smith of first-degree murder, kidnaping, and sexual assault. He was sentenced to death. The convictions and sentence were affirmed on direct appeal, and Smith's state petitions for postconviction relief proved unsuccessful. Smith then filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona. In none of these proceedings did Smith argue that he was mentally retarded or that his mental retardation made him ineligible for the death penalty. Smith had, however, presented *7 evidence in mitigation during the sentencing phase of his trial showing that he had low intelligence. The District Court denied Smith's petition for habeas corpus in 1996. Following several rounds of appeals, remands, and petitions for certiorari to this Court ), and after we had issued our decision in the case returned to the Ninth Circuit. Shortly thereafter, Smith asserted in briefing that he is mentally retarded and cannot, under Atkins, be executed. The Ninth Circuit ordered suspension of all federal habeas proceedings and directed Smith to "institute proceedings in the proper trial court of Arizona to determine whether the state is prohibited from executing [Smith] in accordance with Atkins." App. to Pet. for Cert. A-2. The court further ordered that the issue whether Smith is mentally retarded must "be determined by a jury trial unless the right to a jury is waived by the parties." The State's petition for certiorari is granted,[*] the judgment of the Court of Appeals is vacated, and the case is remanded. The Ninth Circuit erred in commanding the Arizona courts to conduct a jury trial to resolve Smith's mental retardation claim. Atkins stated in clear terms that "`we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'" ; modifications in original). States, including Arizona, have responded to that challenge by adopting their own measures for adjudicating claims of mental retardation. While those measures might, in their application, be subject to constitutional challenge, Arizona had not even had a chance to apply its chosen procedures *8 when the Ninth Circuit pre-emptively imposed its jury trial condition. Because the Court of Appeals exceeded its limited authority on habeas review, the judgment below is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Alito

majority

Kansas v. Colorado

2009-03-09

https://www.courtlistener.com/opinion/145898/kansas-v-colorado/

https://www.courtlistener.com/api/rest/v3/clusters/145898/

2008-033

This is the latest in a line of contested matters that have come before us in this action that was brought in this Court by the State of Kansas against the State of Colorado concerning the Arkansas River. The Special Master has filed a Fifth and Final Report that includes a proposed judgment and decree, and Kansas has filed an exception to the Report, contending that the Special Master erred in concluding that 28 U.S. C. §1821, which sets the witness attendance fee for a proceeding in “any court of the United States” at $40 per day, applies to cases within this Court’s original jurisdiction. Assuming for the sake of argument that Kansas is correct in its interpretation of the statutes at issue in this matter and that this Court has the author ity to determine the amount that Kansas should recover in expert witness fees, we hold that the fee set out in §1821 is nevertheless the appropriate fee. Accordingly, we overrule Kansas’ exception and approve the entry of the proposed judgment and decree. I Kansas filed this original action in 1985, claiming that Colorado had violated the Arkansas River Compact (Com 2 KANSAS v. COLORADO Opinion of the Court pact),1 63 Stat. 145, by drilling irrigation wells that de pleted water that should have been available for users in Kansas. In 1995, we accepted the recommendation of the Special Master that Colorado’s wells had violated the Compact, and we remanded for further proceedings to determine appropriate remedies. See Kansas v. Colorado, 514 U.S. 673. The Special Master then recommended that monetary damages be awarded as compensation. In 2001, we accepted all but one of the Special Master’s recommendations, modifying the remaining recommenda tion with respect to the starting date for an award of prejudgment interest. See Kansas v. Colorado, 533 U.S. 1. In 2004, we approved additional recommendations by the Special Master,2 and the case was again remanded. See Kansas v. Colorado, 543 U.S. 86. On remand, the Special Master approved a schedule to resolve remaining disputed issues. Consistent with our guidance, experts for the States were assigned greater responsibility for discussing and resolving issues. Because of the contributions of expert witnesses and the use of the Hydrologic-Institutional Model to determine compliance with the Compact, the parties resolved most of the dis puted issues. See id., at 89. The sole remaining issue concerns Kansas’ application for expert witness fees. After the Special Master deter mined that Kansas was the prevailing party for purposes —————— 1 The Compact, which was approved by negotiators for the States of Kansas and Colorado in 1948, allows post-Compact development in Colorado provided that such development does not cause material depletions of usable stateline flows. 2 The recommendations we approved in 2004 were: (1) that the Court not appoint a River Master; (2) that the amount of prejudgment inter est be set; (3) that calculations regarding river depletions be made on a 10-year basis in order to even out possible inaccuracies in computer modeling; and (4) that a Colorado Water Court be given the authority to make certain determinations relevant to continuing implementation of agreements reached through this litigation Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court of awarding “costs,” Kansas submitted two alternative proposals for calculating the amount that it was entitled to recover for the costs it had incurred in retaining expert witnesses. The first proposal, which Kansas advocated, was based on the assumption that these fees were not limited by the $40 per day attendance fee set out in §1821(b) and called for an award of $9,214,727.81 in ex pert witness fees. The other calculation, which was based on the assumption that §1821(b) did apply, calculated the amount that Kansas was entitled to recover for expert witness fees at $162,927.94. After hearing argument, the Special Master held that §1821 applies in cases within our original jurisdiction. Based on this holding, the two States entered into a cost settlement agreement that provided for total witness costs of $199,577.19 but preserved the right of the States to file exceptions to the Special Master’s rulings on legal issues regarding costs. II Kansas argues that the Special Master erred in holding that §1821(b) applies to cases within our original jurisdic tion. Kansas contends that early statutes governing the award of costs in cases in the lower courts did not apply to this Court’s original cases and that this scheme has been carried forward to the present day. Kansas notes that the statutory provision authorizing the taxation of costs, 28 U.S. C. §1920, authorizes “[a] judge or clerk of any court of the United States” to tax as costs “[f]ees . . . for . . . witnesses” and that the definition of the term “judge . . . of the United States,” as used in Title 28, does not include a Justice of this Court. In Kansas’ view, §1911, which pro vides that “[t]he Supreme Court may fix the fees to be charged by its clerk,” manifests Congress’ understanding that we should have the authority to determine the fees that may be recovered by a prevailing party in a case 4 KANSAS v. COLORADO Opinion of the Court brought under our original jurisdiction. Kansas further maintains that “[e]ven if Congress had intended to regu late taxation of costs in the original jurisdiction of this Court, such an act would be subject to the Court’s ultimate authority to regulate procedure within its constitutionally created original jurisdiction.” Kansas’ Exception and Brief 10. Kansas therefore contends that our holding in Craw ford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S. 437, 444 (1987), that district courts must adhere to the witness attendance fee limitations set forth in §1821(b), is not relevant here. Colorado disagrees. Citing our decision in Crawford Fitting, Colorado argues that the $40 per day witness attendance fee limitation of §1821(b) applies not only to cases in the district courts but also to our original cases. Colorado notes that §1821(a)(1) prescribes the witness attendance fee for a proceeding in “any court of the United States” and that §1821(a)(2) defines the term “ ‘court of the United States’ ” to include this Court. Colorado also con tends that there is no precedent to support the argument that the Constitution prohibits Congress from imposing a limit on expert witness fees in cases within our original jurisdiction, and Colorado sees no justification for an award of costs for expert witness fees in excess of the limit in §1821(b). III We find it unnecessary to decide whether Congress has attempted to regulate the recovery of expert witness fees by a prevailing party in a case brought under our original jurisdiction. Nor do we decide whether Kansas is correct in contending that Article III of the Constitution does not permit Congress to impose such a restriction. Assuming for the sake of argument that Kansas is correct in arguing that we have the discretion to determine the fees that are recoverable in original actions, we conclude that it is Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court nevertheless appropriate to follow §1821(b). Congress’ decision not to permit a prevailing party in the lower courts to recover its actual witness fee expenses may be seen as a decision to depart only slightly from the so-called “American Rule,” under which parties generally bear their own expenses. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975) (the American Rule applies not only to attorney’s fees but also other costs of litigation, including expert witness fees and miscellane ous costs such as transcripts and duplication). While this policy choice is debatable, we see no good reason why the rule regarding the recovery of expert witness fees should differ markedly depending on whether a case is originally brought in a district court or in this Court. Many cases brought in the district courts are no less complex than those brought originally in this Court. And while the parties in our original cases sometimes are required to incur very substantial expert costs, as happened in the present case, the same is frequently true in lower court litigation. Thus, assuming for the sake of argument that the matter is left entirely to our discretion, we conclude that the best approach is to have a uniform rule that applies in all federal cases. We therefore hold that the expert witness attendance fees that are available in cases brought under our original jurisdiction shall be the same as the expert witness atten dance fees that would be available in a district court under §1821(b). We thus overrule Kansas’ exception to the Report of the Special Master. It is so ordered. Cite as: 556 U. S. ____ (2009) 1 ROBERTS, C. J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 105, Orig. _________________ STATE OF KANSAS, PLAINTIFF v.

This is the latest in a line of contested matters that have come before us in this action that was brought in this Court by the State of Kansas against the State of Colorado concerning the Arkansas River. The Special Master has filed a Fifth and Final Report that includes a proposed judgment and decree, and Kansas has filed an exception to the Report, contending that the Special Master erred in concluding that 28 U.S. C. which sets the witness attendance fee for a proceeding in “any court of the United States” at $40 per day, applies to cases within this Court’s original jurisdiction. Assuming for the sake of argument that Kansas is correct in its interpretation of the statutes at issue in this matter and that this Court has the author ity to determine the amount that Kansas should recover in expert witness fees, we hold that the fee set out in is nevertheless the appropriate fee. Accordingly, we overrule Kansas’ exception and approve the entry of the proposed judgment and decree. I Kansas filed this original action in 1985, claiming that Colorado had violated the Arkansas River Compact (Com 2 KANSAS v. COLORADO Opinion of the Court pact),1 by drilling irrigation wells that de pleted water that should have been available for users in Kansas. In 1995, we accepted the recommendation of the Special Master that Colorado’s wells had violated the Compact, and we remanded for further proceedings to determine appropriate remedies. See The Special Master then recommended that monetary damages be awarded as compensation. In 2001, we accepted all but one of the Special Master’s recommendations, modifying the remaining recommenda tion with respect to the starting date for an award of prejudgment interest. See 533 U.S. 1. In 2004, we approved additional recommendations by the Special Master,2 and the case was again remanded. See On remand, the Special Master approved a schedule to resolve remaining disputed issues. Consistent with our guidance, experts for the States were assigned greater responsibility for discussing and resolving issues. Because of the contributions of expert witnesses and the use of the Hydrologic-Institutional Model to determine compliance with the Compact, the parties resolved most of the dis puted issues. See The sole remaining issue concerns Kansas’ application for expert witness fees. After the Special Master deter mined that Kansas was the prevailing party for purposes —————— 1 The Compact, which was approved by negotiators for the States of Kansas and Colorado in 1948, allows post-Compact development in Colorado provided that such development does not cause material depletions of usable stateline flows. 2 The recommendations we approved in 2004 were: (1) that the Court not appoint a River Master; (2) that the amount of prejudgment inter est be set; (3) that calculations regarding river depletions be made on a 10-year basis in order to even out possible inaccuracies in computer modeling; and (4) that a Colorado Water Court be given the authority to make certain determinations relevant to continuing implementation of agreements reached through this litigation Cite as: 556 U. S. (2009) 3 Opinion of the Court of awarding “costs,” Kansas submitted two alternative proposals for calculating the amount that it was entitled to recover for the costs it had incurred in retaining expert witnesses. The first proposal, which Kansas advocated, was based on the assumption that these fees were not limited by the $40 per day attendance fee set out in (b) and called for an award of $9,214,727.81 in ex pert witness fees. The other calculation, which was based on the assumption that (b) did apply, calculated the amount that Kansas was entitled to recover for expert witness fees at $162,927.94. After hearing argument, the Special Master held that applies in cases within our original jurisdiction. Based on this holding, the two States entered into a cost settlement agreement that provided for total witness costs of $199,577.19 but preserved the right of the States to file exceptions to the Special Master’s rulings on legal issues regarding costs. II Kansas argues that the Special Master erred in holding that (b) applies to cases within our original jurisdic tion. Kansas contends that early statutes governing the award of costs in cases in the lower courts did not apply to this Court’s original cases and that this scheme has been carried forward to the present day. Kansas notes that the statutory provision authorizing the taxation of costs, 28 U.S. C. authorizes “[a] judge or clerk of any court of the United States” to tax as costs “[f]ees for witnesses” and that the definition of the term “judge of the United States,” as used in Title 28, does not include a Justice of this Court. In Kansas’ view, which pro vides that “[t]he Supreme Court may fix the fees to be charged by its clerk,” manifests Congress’ understanding that we should have the authority to determine the fees that may be recovered by a prevailing party in a case 4 KANSAS v. COLORADO Opinion of the Court brought under our original jurisdiction. Kansas further maintains that “[e]ven if Congress had intended to regu late taxation of costs in the original jurisdiction of this Court, such an act would be subject to the Court’s ultimate authority to regulate procedure within its constitutionally created original jurisdiction.” Kansas’ Exception and Brief 10. Kansas therefore contends that our holding in Craw ford Fitting (1987), that district courts must adhere to the witness attendance fee limitations set forth in (b), is not relevant here. Colorado disagrees. Citing our decision in Crawford Fitting, Colorado argues that the $40 per day witness attendance fee limitation of (b) applies not only to cases in the district courts but also to our original cases. Colorado notes that (a)(1) prescribes the witness attendance fee for a proceeding in “any court of the United States” and that (a)(2) defines the term “ ‘court of the United States’ ” to include this Court. Colorado also con tends that there is no precedent to support the argument that the Constitution prohibits Congress from imposing a limit on expert witness fees in cases within our original jurisdiction, and Colorado sees no justification for an award of costs for expert witness fees in excess of the limit in (b). III We find it unnecessary to decide whether Congress has attempted to regulate the recovery of expert witness fees by a prevailing party in a case brought under our original jurisdiction. Nor do we decide whether Kansas is correct in contending that Article III of the Constitution does not permit Congress to impose such a restriction. Assuming for the sake of argument that Kansas is correct in arguing that we have the discretion to determine the fees that are recoverable in original actions, we conclude that it is Cite as: 556 U. S. (2009) 5 Opinion of the Court nevertheless appropriate to follow (b). Congress’ decision not to permit a prevailing party in the lower courts to recover its actual witness fee expenses may be seen as a decision to depart only slightly from the so-called “American Rule,” under which parties generally bear their own expenses. See Alyeska Pipeline Service Co. v. Wilderness Society, (the American Rule applies not only to attorney’s fees but also other costs of litigation, including expert witness fees and miscellane ous costs such as transcripts and duplication). While this policy choice is debatable, we see no good reason why the rule regarding the recovery of expert witness fees should differ markedly depending on whether a case is originally brought in a district court or in this Court. Many cases brought in the district courts are no less complex than those brought originally in this Court. And while the parties in our original cases sometimes are required to incur very substantial expert costs, as happened in the present case, the same is frequently true in lower court litigation. Thus, assuming for the sake of argument that the matter is left entirely to our discretion, we conclude that the best approach is to have a uniform rule that applies in all federal cases. We therefore hold that the expert witness attendance fees that are available in cases brought under our original jurisdiction shall be the same as the expert witness atten dance fees that would be available in a district court under (b). We thus overrule Kansas’ exception to the Report of the Special Master. It is so ordered. Cite as: 556 U. S. (2009) 1 ROBERTS, C. J., concurring SUPREME COURT OF THE UNITED STATES No. 105, Orig. STATE OF KANSAS, PLAINTIFF v.

Justice Roberts

concurring

Kansas v. Colorado

2009-03-09

https://www.courtlistener.com/opinion/145898/kansas-v-colorado/

https://www.courtlistener.com/api/rest/v3/clusters/145898/

2008-033

I join the opinion of the Court in full. I do so only, how ever, because the opinion expressly and carefully makes clear that it in no way infringes this Court’s authority to decide on its own, in original cases, whether there should be witness fees and what they should be. Our appellate jurisdiction is, under the Constitution, subject to “such Exceptions, and . . . such Regulations as the Congress shall make.” Art. III, §2. Our original juris diction is not. The Framers presumably “act[ed] inten tionally and purposely in the disparate inclusion or exclu sion” of these terms. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (internal quotation marks omitted). It is accordingly our responsibility to determine matters related to our original jurisdiction, including the availabil ity and amount of witness fees. For the reasons given by the Court, I agree that $40 is a reasonable choice for the fees at issue here. But the choice is ours

I join the opinion of the Court in full. I do so only, how ever, because the opinion expressly and carefully makes clear that it in no way infringes this Court’s authority to decide on its own, in original cases, whether there should be witness fees and what they should be. Our appellate jurisdiction is, under the Constitution, subject to “such Exceptions, and such Regulations as the Congress shall make.” Art. III, Our original juris diction is not. The Framers presumably “act[ed] inten tionally and purposely in the disparate inclusion or exclu sion” of these terms. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (internal quotation marks omitted). It is accordingly our responsibility to determine matters related to our original jurisdiction, including the availabil ity and amount of witness fees. For the reasons given by the Court, I agree that $40 is a reasonable choice for the fees at issue here. But the choice is ours

Justice Ginsburg

majority

Ruhrgas Ag v. Marathon Oil Co.

1999-05-17

https://www.courtlistener.com/opinion/118288/ruhrgas-ag-v-marathon-oil-co/

https://www.courtlistener.com/api/rest/v3/clusters/118288/

1998-056

This case concerns the authority of the federal courts to adjudicate controversies. Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them. In Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998), this Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections "where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." Id., at 93. Recalling "a long and venerable line of our cases," id., at 94, Steel Co. reiterated: "The requirement that jurisdiction be established as a threshold matter . . . is `inflexible and without exception,' " id., at 94-95 (quoting Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884)); for "[j]urisdiction is power to declare the law," and "`[w]ithout jurisdiction the court cannot proceed at all in any cause,' " 523 U.S., at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). The Court, in Steel Co., acknowledged that "the absolute purity" of the jurisdiction-first rule had been diluted in a few extraordinary cases, 523 U.S., at 101, and Justice O'Connor, joined by Justice Kennedy, joined the majority on the understanding that the Court's opinion did not catalog "an exhaustive list of circumstances" in which exceptions to the solid rule were appropriate, id., at 110. Steel Co. is the backdrop for the issue now before us: If, as Steel Co. held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question *578 of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks "[w]hether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction." Pet. for Cert. i. We hold that in cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry. The proceeding before us is such a case. I The underlying controversy stems from a venture to produce gas in the Heimdal Field of the Norwegian North Sea. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired Marathon Petroleum Company (Norway) (MPCN) and respondent Marathon Petroleum Norge (Norge). See App. 26.[1] Before the acquisition, Norge held a license to produce gas in the Heimdal Field; following the transaction, Norge assigned the license to MPCN. See Record, Exhs. 61 and 62 to Document 64. In 1981, MPCN contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. See Record, Exh. 1 to Document 63, pp. 90, 280. The parties' agreement was incorporated *579 into the Heimdal Gas Sales Agreement (Heimdal Agreement), which is "governed by and construed in accordance with Norwegian Law," Record, Exh. B, Tab 1 to Pet. for Removal, Heimdal Agreement, p. 102; disputes thereunder are to be "exclusively and finally . . . settled by arbitration in Stockholm, Sweden, in accordance with" International Chamber of Commerce rules, id., at 100. II Marathon Oil Company, Marathon International Oil Company, and Norge (collectively, Marathon) filed this lawsuit against Ruhrgas in Texas state court on July 6, 1995, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. See App. 33-40. Marathon Oil Company and Marathon International Oil Company alleged that Ruhrgas and the other European buyers induced them with false promises of "premium prices" and guaranteed pipeline tariffs to invest over $300 million in MPCN for the development of the Heimdal Field and the erection of a pipeline to Ruhrgas' plant in Germany. See id., at 26-28; Brief for Respondents 1-2. Norge alleged that Ruhrgas' effective monopolization of the Heimdal gas diminished the value of the license Norge had assigned to MPCN. See App. 31, 33, 357; Brief for Respondents 2. Marathon asserted that Ruhrgas had furthered its plans at three meetings in Houston, Texas, and through a stream of correspondence directed to Marathon in Texas. See App. 229, 233. Ruhrgas removed the case to the District Court for the Southern District of Texas. See 145 F.3d 211, 214 (CA5 1998). In its notice of removal, Ruhrgas asserted three bases for federal jurisdiction: diversity of citizenship, see 28 U.S. C. § 1332 (1994 ed. and Supp. III), on the theory that Norge, the only nondiverse plaintiff, had been fraudulently *580 joined;[2] federal question, see § 1331, because Marathon's claims "raise[d] substantial questions of foreign and international relations, which are incorporated into and form part of the federal common law," App. 274; and 9 U.S. C. § 205, which authorizes removal of cases "relat[ing] to" international arbitration agreements.[3] See 145 F.3d, at 214-215; 115 F.3d 315, 319-321 (CA5), vacated and rehearing en banc granted, 129 F.3d 746 (1997). Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. See 145 F.3d, at 215. After permitting jurisdictional discovery, the District Court dismissed the case for lack of personal jurisdiction. See App. 455. In so ruling, the District Court relied on Fifth Circuit precedent allowing district courts to adjudicate personal jurisdiction without first establishing subjectmatter jurisdiction. See id., at 445. Texas' long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (1997), authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution. See App. 446; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985). The District Court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction. *581 See App. 445-454. Finding "no evidence that Ruhrgas engaged in any tortious conduct in Texas," id., at 450, the court determined that Marathon's complaint did not present circumstances adequately affiliating Ruhrgas with Texas, see id., at 448.[4] A panel of the Court of Appeals for the Fifth Circuit concluded that "respec[t]" for "the proper balance of federalism" impelled it to turn first to "the formidable subject matter jurisdiction issue presented." 115 F.3d, at 318. After examining and rejecting each of Ruhrgas' asserted bases of federal jurisdiction, see id., at 319-321,[5] the Court of Appeals vacated the judgment of the District Court and ordered the case remanded to the state court, see id., at 321. This Court denied Ruhrgas' petition for a writ of certiorari, which was *582 limited to the question whether subject-matter jurisdiction existed under 9 U.S. C. § 205. See 522 U.S. 967 (1997). The Fifth Circuit, on its own motion, granted rehearing en banc, thereby vacating the panel decision. See 129 F.3d 746 (1997). In a 9-to-7 decision, the en banc court held that, in removed cases, district courts must decide issues of subjectmatter jurisdiction first, reaching issues of personal jurisdiction "only if subject-matter jurisdiction is found to exist." 145 F.3d, at 214. Noting Steel Co. `s instruction that subject-matter jurisdiction must be "`established as a threshold matter,' " 145 F.3d, at 217 (quoting 523 U.S., at 94), the Court of Appeals derived from that decision "counsel against" recognition of judicial discretion to proceed directly to personal jurisdiction. 145 F. 3d,at 218. The court limited its holding to removed cases; it perceived in those cases the most grave threat that federal courts would "usur[p] . . . state courts' residual jurisdiction." Id., at 219.[6] Writing for the seven dissenters, Judge Higginbotham agreed that subject-matter jurisdiction ordinarily should be considered first. See id., at 231. If the challenge to personal jurisdiction involves no complex state-law questions, however, and is more readily resolved than the challenge to subject-matter jurisdiction, the District Court, in the dissenters' view, should take the easier route. See ibid. Judge Higginbotham regarded the District Court's decision dismissing Marathon's case as illustrative and appropriate: While Ruhrgas' argument under 9 U.S. C. § 205 presented a difficult issue of first impression, its personal jurisdiction challenge raised "[n]o substantial questions of purely state law," and "could be resolved relatively easily in [Ruhrgas'] favor." 145 F.3d, at 232-233. *583 We granted certiorari, 525 U.S. 1039 (1998), to resolve a conflict between the Circuits[7] and now reverse. III Steel Co. held that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case. "For a court to pronounce upon [the merits] when it has no jurisdiction to do so," Steel Co. declared, "is . . . for a court to act ultra vires." 523 U.S., at 101-102. The Fifth Circuit incorrectly read Steel Co. to teach that subject-matter jurisdiction must be found to exist, not only before a federal court reaches the merits, but also before personal jurisdiction is addressed. See 145 F.3d, at 218. A The Court of Appeals accorded priority to the requirement of subject-matter jurisdiction because it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. See id., at 217-218. The character of the two jurisdictional bedrocks unquestionably differs. Subject-matter limitations on federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level. See Steel Co., 523 U. S., at 94-95; Fed. Rule Civ. Proc. 12(h)(3) ("Whenever it appears . . . that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); 28 U.S. C. § 1447(c) (1994 ed., Supp. III) ("If at any time before final judgment [in a removed case] it appears that the *584 district court lacks subject matter jurisdiction, the case shall be remanded."). Personal jurisdiction, on the other hand, "represents a restriction on judicial power . . . as a matter of individual liberty." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority. See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person waivable); Insurance Corp. of Ireland, 456 U. S., at 703 (same). These distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is "an essential element of the jurisdiction of a district . . . court," without which the court is "powerless to proceed to an adjudication." Employers Reinsurance Corp. v. Bryant, 299 U.S. 374, 382 (1937). In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies—lack of complete diversity—rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by 28 U.S. C. § 1332 (1994 ed. and Supp. III), but not by Article III, see State Farm Fire & Casualty Co. v. Tashire, 386 U.S. 523, 530-531 (1967), is absent. In contrast, Ruhrgas relies on the constitutional safeguard of due process to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland, 456 U. S., at 702 ("The requirement that a court have personal jurisdiction flows . . . from the Due Process Clause."). While Steel Co. reasoned that subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues. "[A] court that dismisses on . . . non-merits grounds such as . . . personal jurisdiction, before finding subject-matter jurisdiction, makes no assumption of law-declaring power *585 that violates the separation of powers principles underlying Mansfield and Steel Company. " In re Papandreou, 139 F.3d 247, 255 (CADC 1998). It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel Co., district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see Moor v. County of Alameda, 411 U.S. 693, 715-716 (1973), or abstain under Younger v. Harris, 401 U.S. 37 (1971), without deciding whether the parties present a case or controversy, see Ellis v. Dyson, 421 U.S. 426, 433-434 (1975). See Steel Co., 523 U. S., at 100-101, n. 3; cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 (1997) (pretermitting challenge to appellants' standing and dismissing on mootness grounds). B Maintaining that subject-matter jurisdiction must be decided first even when the litigation originates in federal court, see Tr. of Oral Arg. 21; Brief for Respondents 13, Marathon sees removal as the more offensive case, on the ground that the dignity of state courts is immediately at stake. If a federal court dismisses a removed case for want of personal jurisdiction, that determination may preclude the parties from relitigating the very same personal jurisdiction issue in state court. See Baldwin v. Iowa State Traveling Men's Assn., 283 U.S. 522, 524-527 (1931) (personal jurisdiction ruling has issue-preclusive effect). Issue preclusion in subsequent state-court litigation, however, may also attend a federal court's subject-matter determination. Ruhrgas hypothesizes, for example, a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract. See Tr. of Oral Arg. 10-11. If the district court determines that state law does not allow punitive *586 damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, see 28 U.S. C. § 1332(a) (1994 ed., Supp. III) ($75,000), the federal court's conclusion will travel back with the case. Assuming a fair airing of the issue in federal court, that court's ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376 (1940) ("[Federal courts'] determinations of [whether they have jurisdiction to entertain a case] may not be assailed collaterally."); Restatement (Second) of Judgments § 12, p. 115 (1980) ("When a court has rendered a judgment in a contested action, the judgment [ordinarily] precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation."). Similarly, as Judge Higginbotham observed, our "dualistic . . . system of federal and state courts" allows federal courts to make issue-preclusive rulings about state law in the exercise of supplemental jurisdiction under 28 U.S. C. § 1367. 145 F.3d, at 231, and n. 7. Most essentially, federal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises "difficult questions of [state] law," and subject-matter jurisdiction is resolved "as eas[ily]" as personal jurisdiction, a district court will ordinarily conclude that "federalism concerns tip the scales in favor of initially ruling on the motion to remand." Allen v. Ferguson, 791 F.2d 611, 616 (CA7 1986). In other cases, however, the district court may find that concerns of judicial economy and restraint are overriding. See, e. g., Asociacion Nacional de Pescadores v. Dow Quimica, 988 F.2d 559, 566-567 (CA5 1993) (if removal is nonfrivolous and *587 personal jurisdiction turns on federal constitutional issues, "federal intrusion into state courts' authority . . . is minimized"). The federal design allows leeway for sensitive judgments of this sort. "`Our Federalism' " "does not mean blind deference to `States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments." Younger, 401 U. S., at 44. The Fifth Circuit and Marathon posit that state-court defendants will abuse the federal system with opportunistic removals. A discretionary rule, they suggest, will encourage manufactured, convoluted federal subject-matter theories designed to wrench cases from state court. See 145 F.3d, at 219; Brief for Respondents 28-29. This specter of unwarranted removal, we have recently observed, "rests on an assumption we do not indulge—that district courts generally will not comprehend, or will balk at applying, the rules on removal Congress has prescribed. . . . The well-advised defendant . . . will foresee the likely outcome of an unwarranted removal—a swift and nonreviewable remand order, see 28 U.S. C. §§ 1447(c), (d), attended by the displeasure of a district court whose authority has been improperly invoked." Caterpillar Inc. v. Lewis, 519 U.S. 61, 77-78 (1996). C In accord with Judge Higginbotham, we recognize that in most instances subject-matter jurisdiction will involve no arduous inquiry. See 145 F.3d, at 229 ("engag[ing]" subjectmatter jurisdiction "at the outset of a case . . . [is] often . . . the most efficient way of going"). In such cases, both expedition and sensitivity to state courts' coequal stature should *588 impel the federal court to dispose of that issue first. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F.3d 152, 155 (CA2 1996) (a court disposing of a case on personal jurisdiction grounds "should be convinced that the challenge to the court's subject-matter jurisdiction is not easily resolved"). Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.[8] * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

This case concerns the authority of the federal courts to adjudicate controversies. Jurisdiction to resolve on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them. In Steel this Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections "where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." Recalling "a long and venerable line of our" Steel reiterated: "The requirement that jurisdiction be established as a threshold matter is `inflexible and without exception,' " -95 ); for "[j]urisdiction is power to declare the law," and "`[w]ithout jurisdiction the court cannot proceed at all in any cause,' " 523 U.S., ). The Court, in Steel acknowledged that "the absolute purity" of the jurisdiction-first rule had been diluted in a few extraordinary and Justice O'Connor, joined by Justice Kennedy, joined the majority on the understanding that the Court's opinion did not catalog "an exhaustive list of circumstances" in which exceptions to the solid rule were appropriate, Steel is the backdrop for the issue now before us: If, as Steel held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question *578 of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks "[w]hether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction." Pet. for Cert. i. We hold that in removed from state court to federal court, as in originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry. The proceeding before us is such a case. I The underlying controversy stems from a venture to produce gas in the Heimdal Field of the Norwegian North Sea. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired Marathon Petroleum Company (Norway) (MPCN) and respondent Marathon Petroleum Norge (Norge). See App. 26.[1] Before the acquisition, Norge held a license to produce gas in the Heimdal Field; following the transaction, Norge assigned the license to MPCN. See Record, Exhs. 61 and 62 to Document 64. In 1981, MPCN contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. See Record, Exh. 1 to Document 63, pp. 90, 280. The parties' agreement was incorporated *579 into the Heimdal Gas Sales Agreement (Heimdal Agreement), which is "governed by and construed in accordance with Norwegian Law," Record, Exh. B, Tab 1 to Pet. for Removal, Heimdal Agreement, p. 102; disputes thereunder are to be "exclusively and finally settled by arbitration in Stockholm, Sweden, in accordance with" International Chamber of Commerce rules, II Marathon Oil Company, Marathon International Oil Company, and Norge (collectively, Marathon) filed this lawsuit against Ruhrgas in Texas state court on July 6, 1995, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. See App. 33-40. Marathon Oil Company and Marathon International Oil Company alleged that Ruhrgas and the other European buyers induced them with false promises of "premium prices" and guaranteed pipeline tariffs to invest over $300 million in MPCN for the development of the Heimdal Field and the erection of a pipeline to Ruhrgas' plant in Germany. See ; Brief for Respondents 1-2. Norge alleged that Ruhrgas' effective monopolization of the Heimdal gas diminished the value of the license Norge had assigned to MPCN. See App. 31, 33, 357; Brief for Respondents 2. Marathon asserted that Ruhrgas had furthered its plans at three meetings in Houston, Texas, and through a stream of correspondence directed to Marathon in Texas. See App. 229, 233. Ruhrgas removed the case to the District Court for the Southern District of Texas. See In its notice of removal, Ruhrgas asserted three bases for federal jurisdiction: diversity of citizenship, see 28 U.S. C. 1332 (1994 ed. and Supp. III), on the theory that Norge, the only nondiverse plaintiff, had been fraudulently *580 joined;[2] federal question, see 1331, because Marathon's claims "raise[d] substantial questions of foreign and international relations, which are incorporated into and form part of the federal common law," App. 274; and 9 U.S. C. 205, which authorizes removal of "relat[ing] to" international arbitration agreements.[3] See 145 F.3d, at -215; (CA5), vacated and rehearing en banc granted, Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. See After permitting jurisdictional discovery, the District Court dismissed the case for lack of personal jurisdiction. See App. 455. In so ruling, the District Court relied on Fifth Circuit precedent allowing district courts to adjudicate personal jurisdiction without first establishing subjectmatter jurisdiction. See Texas' long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. 17.042 authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution. See App. 446; Kawasaki Steel The District Court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction. *581 See App. 445-454. Finding "no evidence that Ruhrgas engaged in any tortious conduct in Texas," the court determined that Marathon's complaint did not present circumstances adequately affiliating Ruhrgas with Texas, see[4] A panel of the Court of Appeals for the Fifth Circuit concluded that "respec[t]" for "the proper balance of federalism" impelled it to turn first to "the formidable subject matter jurisdiction issue presented." After examining and rejecting each of Ruhrgas' asserted bases of federal jurisdiction, see at[5] the Court of Appeals vacated the judgment of the District Court and ordered the case remanded to the state court, see This Court denied Ruhrgas' petition for a writ of certiorari, which was *582 limited to the question whether subject-matter jurisdiction existed under 9 U.S. C. 205. See The Fifth Circuit, on its own motion, granted rehearing en banc, thereby vacating the panel decision. See In a 9-to-7 decision, the en banc court held that, in removed district courts must decide issues of subjectmatter jurisdiction first, reaching issues of personal jurisdiction "only if subject-matter jurisdiction is found to exist." 145 F.3d, at Noting Steel `s instruction that subject-matter jurisdiction must be "`established as a threshold matter,' " ( 523 U.S., ), the Court of Appeals derived from that decision "counsel against" recognition of judicial discretion to proceed directly to personal jurisdiction. 145 F. 3d,at 218. The court limited its holding to removed ; it perceived in those the most grave threat that federal courts would "usur[p] state courts' residual jurisdiction."[6] Writing for the seven dissenters, Judge Higginbotham agreed that subject-matter jurisdiction ordinarily should be considered first. See If the challenge to personal jurisdiction involves no complex state-law questions, however, and is more readily resolved than the challenge to subject-matter jurisdiction, the District Court, in the dissenters' view, should take the easier route. See Judge Higginbotham regarded the District Court's decision dismissing Marathon's case as illustrative and appropriate: While Ruhrgas' argument under 9 U.S. C. 205 presented a difficult issue of first impression, its personal jurisdiction challenge raised "[n]o substantial questions of purely state law," and "could be resolved relatively easily in [Ruhrgas'] favor." -233. *583 We granted certiorari, to resolve a conflict between the Circuits[7] and now reverse. III Steel held that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case. "For a court to pronounce upon [the merits] when it has no jurisdiction to do so," Steel declared, "is for a court to act ultra vires." -102. The Fifth Circuit incorrectly read Steel to teach that subject-matter jurisdiction must be found to exist, not only before a federal court reaches the merits, but also before personal jurisdiction is addressed. See A The Court of Appeals accorded priority to the requirement of subject-matter jurisdiction because it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. See The character of the two jurisdictional bedrocks unquestionably differs. Subject-matter limitations on federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level. See Steel 523 U. S., -95; Fed. Rule Civ. Proc. 12(h)(3) ("Whenever it appears that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); 28 U.S. C. 1447(c) (1994 ed., Supp. III) ("If at any time before final judgment [in a removed case] it appears that the *584 district court lacks subject matter jurisdiction, the case shall be remanded."). Personal jurisdiction, on the other hand, "represents a restriction on judicial power as a matter of individual liberty." Insurance Corp. of Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority. See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person waivable); Insurance Corp. of These distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is "an essential element of the jurisdiction of a district court," without which the court is "powerless to proceed to an adjudication." Employers Reinsurance In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies—lack of complete diversity—rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by 28 U.S. C. 1332 (1994 ed. and Supp. III), but not by Article III, see State Farm Fire & Casualty v. Tashire, is absent. In contrast, Ruhrgas relies on the constitutional safeguard of due process to stop the court from proceeding to the merits of the case. See Insurance Corp. of 456 U. S., at While Steel reasoned that subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues. "[A] court that dismisses on non-merits grounds such as personal jurisdiction, before finding subject-matter jurisdiction, makes no assumption of law-declaring power *585 that violates the separation of powers principles underlying Mansfield and Steel Company. " In re Papandreou, It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see or abstain under without deciding whether the parties present a case or controversy, see See Steel 523 U. S., -101, n. 3; cf. Arizonans for Official B Maintaining that subject-matter jurisdiction must be decided first even when the litigation originates in federal court, see Tr. of Oral Arg. 21; Brief for Respondents 13, Marathon sees removal as the more offensive case, on the ground that the dignity of state courts is immediately at stake. If a federal court dismisses a removed case for want of personal jurisdiction, that determination may preclude the parties from relitigating the very same personal jurisdiction issue in state court. See Issue preclusion in subsequent state-court litigation, however, may also attend a federal court's subject-matter determination. Ruhrgas hypothesizes, for example, a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract. See Tr. of Oral Arg. 10-11. If the district court determines that state law does not allow punitive *586 damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, see 28 U.S. C. 1332(a) (1994 ed., Supp. III) ($75,000), the federal court's conclusion will travel back with the case. Assuming a fair airing of the issue in federal court, that court's ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications. See Chicot County Drainage ; Restatement (Second) of Judgments 12, p. 115 (1980) ("When a court has rendered a judgment in a contested action, the judgment [ordinarily] precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation."). Similarly, as Judge Higginbotham observed, our "dualistic system of federal and state courts" allows federal courts to make issue-preclusive rulings about state law in the exercise of supplemental jurisdiction under 28 U.S. C. 145 F.3d, and n. 7. Most essentially, federal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises "difficult questions of [state] law," and subject-matter jurisdiction is resolved "as eas[ily]" as personal jurisdiction, a district court will ordinarily conclude that "federalism concerns tip the scales in favor of initially ruling on the motion to remand." In other however, the district court may find that concerns of judicial economy and restraint are overriding. See, e. g., Asociacion Nacional de The federal design allows leeway for sensitive judgments of this sort. "`Our Federalism' " "does not mean blind deference to `States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments." Younger, The Fifth Circuit and Marathon posit that state-court defendants will abuse the federal system with opportunistic removals. A discretionary rule, they suggest, will encourage manufactured, convoluted federal subject-matter theories designed to wrench from state court. See 145 F.3d, ; Brief for Respondents 28-29. This specter of unwarranted removal, we have recently observed, "rests on an assumption we do not indulge—that district courts generally will not comprehend, or will balk at applying, the rules on removal Congress has prescribed. The well-advised defendant will foresee the likely outcome of an unwarranted removal—a swift and nonreviewable remand order, see 28 U.S. C. 1447(c), (d), attended by the displeasure of a district court whose authority has been improperly invoked." Caterpillar C In accord with Judge Higginbotham, we recognize that in most instances subject-matter jurisdiction will involve no arduous inquiry. See In such both expedition and sensitivity to state courts' coequal stature should *588 impel the federal court to dispose of that issue first. See Cantor Fitzgerald, L. Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.[8] * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

Justice Sotomayor

majority

Lightfoot v. Cendant Mortgage Corp

2017-01-18

https://www.courtlistener.com/opinion/4374578/lightfoot-v-cendant-mortgage-corp/

https://www.courtlistener.com/api/rest/v3/clusters/4374578/

2016-014

The corporate charter of the Federal National Mortgage Association, known as Fannie Mae, authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S. C. §1723a(a). This case presents the question whether this sue-and-be-sued clause grants federal dis- trict courts jurisdiction over cases involving Fannie Mae. We hold that it does not. I A During the Great Depression, the Federal Government worked to stabilize and strengthen the residential mort- gage market. Among other things, it took steps to in- crease liquidity (reasonably available funding) in the mortgage market. These efforts included the creation of the Federal Home Loan Banks, which provide credit to member institutions to finance affordable housing and economic development projects, and the Federal Housing Administration (FHA), which insures residential mort- 2 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court gages. See Dept. of Housing and Urban Development, Back- ground and History of the Federal National Mortgage Association 1–7, A4 (1966). Also as part of these efforts, Title III of the National Housing Act (1934 Act) authorized the Administrator of the newly created FHA to establish “national mortgage associations” that could “purchase and sell [certain] first mortgages and such other first liens” and “borrow money for such purposes.” §301(a), 48 Stat. 1252–1253. The associations were endowed with certain powers, including the power to “sue and be sued, complain and defend, in any court of law or equity, State or Federal.” §301(c), id., at 1253. In 1938, the FHA Administrator exercised that author- ity and chartered the Federal National Mortgage Associa- tion. Avoiding a mouthful of an acronym (FNMA), it went by Fannie Mae. See, e.g., Washington Post, July 14, 1940, p. P2 (“ ‘Fanny May’ ”); N. Y. Times, Mar. 23, 1950, p. 48 (“ ‘Fannie Mae’ ”). As originally chartered, Fannie Mae was wholly owned by the Federal Government and had three objectives: to “establish a market for [FHA-insured] first mortgages” covering new housing construction, to “facilitate the construction and financing of economically sound rental housing projects,” and to “make [the bonds it issued] available to . . . investors.” Fed. Nat. Mortgage Assn. Information Regarding the Activities of the Assn. 1 (Circular No. 1, 1938). Fannie Mae was rechartered in 1954. Housing Act of 1954 (1954 Act), §201, 68 Stat. 613. No longer wholly Government owned, Fannie Mae had mixed ownership: Private shareholders held its common stock and the De- partment of the Treasury held its preferred stock. The 1954 Act required the Secretary of the Treasury to allow Fannie Mae to repurchase that stock. See id., at 613–615. It expected that Fannie Mae would repurchase all of its preferred stock and that legislation would then be enacted Cite as: 580 U. S. ____ (2017) 3 Opinion of the Court to turn Fannie Mae over to the private stockholders. From then on, Fannie Mae’s duties would “be carried out by a privately owned and privately financed corporation.” Id., at 615. Along with these structural changes, the 1954 Act replaced Fannie Mae’s initial set of powers with a more detailed list. In doing so, it revised the sue-and-be- sued clause to give Fannie Mae the power “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” Id., at 620. In 1968, Fannie Mae became fully privately owned and relinquished part of its portfolio to its new spinoff, the Government National Mortgage Association (known as Ginnie Mae). See Housing and Urban Development Act of 1968 (1968 Act), 82 Stat. 536. Fannie Mae “continue[d] to operate the secondary market operations” but became “a Government-sponsored private corporation.” 12 U.S. C. §1716b. Ginnie Mae “remain[ed] in the Government” and took over “the special assistance functions and manage- ment and liquidating functions.” Ibid. Ginnie Mae re- ceived the same set of powers as Fannie Mae. See §1723(a); see also 1968 Act, §802(z), 82 Stat. 540 (minor revisions to §1723a(a)). This general structure remains in place. Fannie Mae continues to participate in the secondary mortgage mar- ket. It purchases mortgages that meet its eligibility criteria, packages them into mortgage-backed securities, and sells those securities to investors, and it invests in mortgage- backed securities itself. One of those mortgage purchases led to Fannie Mae’s entanglement in this case. B Beverly Ann Hollis-Arrington refinanced her mortgage with Cendant Mortgage Corporation (Cendant) in the summer of 1999. Fannie Mae then bought the mortgage, while Cendant continued to service it. Unable to make her payments, Hollis-Arrington pursued a forbearance ar- 4 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court rangement with Cendant. No agreement materialized, and the home entered foreclosure. Around this time, Cendant repurchased the mortgage from Fannie Mae because it did not meet Fannie Mae’s credit standards. To stave off the foreclosure, Hollis-Arrington and her daughter, Crystal Lightfoot, pursued bankruptcy and transferred the property between themselves. These ef- forts failed, and the home was sold at a trustee’s sale in 2001. The two then took to the courts to try to undo the foreclosure and sale. After two unsuccessful federal suits, the pair filed this suit in state court. They alleged that deficiencies in the refinancing, foreclosure, and sale of their home entitled them to relief against Fannie Mae. Their claims against other defendants are not relevant here. Fannie Mae removed the case to federal court under 28 U.S. C. §1441(a), which permits a defendant to remove from state to federal court “any civil action” over which the federal district courts “have original jurisdiction.” It relied on its sue-and-be-sued clause as the basis for jurisdiction. The District Court denied a motion to remand the case to state court. The District Court then dismissed the claims against Fannie Mae on claim preclusion grounds. After a series of motions, rulings, and appeals not related to the issue here, the District Court entered final judgment. Hollis- Arrington and Lightfoot immediately moved to set aside the judgment under Federal Rule of Civil Procedure 60(b), alleging “fraud upon the court.” App. 95–110. The Dis- trict Court denied the motion. The Ninth Circuit affirmed the dismissal of the case and the denial of the Rule 60(b) motion. 465 Fed. Appx. 668 (2012). After Hollis-Arrington and Lightfoot sought re- hearing, the Ninth Circuit withdrew its opinion and or- dered briefing on the question whether the District Court had jurisdiction over the case under Fannie Mae’s sue- Cite as: 580 U. S. ____ (2017) 5 Opinion of the Court and-be-sued clause. 769 F.3d 681, 682–683 (2014). A divided panel affirmed the District Court’s judgment. The majority relied on American Nat. Red Cross v. S. G., 505 U.S. 247 (1992). It read that decision to have estab- lished a “rule [that] resolves this case”: When a sue-and- be-sued clause in a federal charter expressly authorizes suit in federal courts, it confers jurisdiction on the federal courts. 769 F.3d, at 684. The dissent instead read Red Cross as setting out only a “ ‘default rule’ ” that provides a “starting point for [the] analysis.” 769 F.3d, at 692 (opin- ion of Stein, J.). It read “any court of competent jurisdic- tion” in Fannie Mae’s sue-and-be-sued clause to overcome that default rule by requiring an independent source for jurisdiction in cases involving Fannie Mae. Ibid. Two Circuits have likewise concluded that the language in Fannie Mae’s sue-and-be-sued clause grants jurisdiction to federal courts. See Federal Home Loan Bank of Boston v. Moody’s Corp., 821 F.3d 102 (CA1 2016) (Federal Home Loan Bank of Boston’s identical sue-and-be-sued clause); Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust ex rel. Fed. Nat. Mortgage Assn. v. Raines, 534 F.3d 779 (CADC 2008) (Fannie Mae’s sue-and-be-sued clause). Four Circuits have disagreed, finding that similar lan- guage did not grant jurisdiction. See Western Securities Co. v. Derwinski, 937 F.2d 1276 (CA7 1991) (Under 38 U.S. C. §1820(a)(1) (1988 ed.), Secretary of Veterans Affairs’ authority to “sue and be sued . . . in any court of competent jurisdiction, State or Federal”); C. H. Sanders Co. v. BHAP Housing Development Fund Co., 903 F.2d 114 (CA2 1990) (Under 12 U.S. C. §1702 (1988 ed.), Secre- tary of Housing and Urban Development’s authority “in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal”); Industrial Indemnity, Inc. v. Landrieu, 615 F.2d 644 (CA5 1980) ( per curiam) (similar); Lindy v. Lynn, 501 F.2d 1367 (CA3 1974) (similar). 6 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court We granted certiorari, 579 U. S. ___ (2016), and now reverse. II Fannie Mae’s sue-and-be-sued clause authorizes it “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S. C. §1723a(a). As in other federal corporate charters, this language serves the uncontroversial function of clari- fying Fannie Mae’s capacity to bring suit and to be sued. See Bank of United States v. Deveaux, 5 Cranch 61, 85–86 (1809). The question here is whether Fannie Mae’s sue- and-be-sued clause goes further and grants federal courts jurisdiction over all cases involving Fannie Mae. A In answering this question, “we do not face a clean slate.” Red Cross, 505 U.S., at 252. This Court has ad- dressed the jurisdictional reach of sue-and-be-sued clauses in five federal charters. Three clauses were held to grant jurisdiction, while two were found wanting. The first discussion of sue-and-be-sued clauses came in a pair of opinions by Chief Justice Marshall. The charter of the first Bank of the United States allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever.’ ” Deveaux, 5 Cranch, at 85. Another provision allowed suits in federal court against certain bank officials, suggesting “the right to sue does not imply a right to sue in the courts of the union, unless it be expressed.” Id., at 86. In light of this language, the Court held that the first Bank of the United States had “no right . . . to sue in the federal courts.” Ibid. The Court con- cluded that the second Bank of the United States was not similarly disabled. Its charter allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, Cite as: 580 U. S. ____ (2017) 7 Opinion of the Court defend and be defended, in all State Courts having compe- tent jurisdiction, and in any Circuit Court of the United States.’ ” Osborn v. Bank of United States, 9 Wheat. 738, 817 (1824). The Court took from Deveaux “that a general capacity in the Bank to sue, without mentioning the Courts of the Union, may not give a right to sue in those Courts.” 9 Wheat., at 818. By contrast, the second Bank’s charter did grant jurisdiction to the federal circuit courts because it used “words expressly conferring a right to sue in those Courts.” Ibid. A mortgage dispute between a railroad and its creditor led to the next consideration of this issue. The Texas and Pacific Railway Company’s federal charter authorized it “ ‘to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States.’ ” Bankers Trust Co. v. Texas & Pacific R. Co., 241 U.S. 295, 302 (1916). This Court held that the clause had “the same generality and natural import as” the clause in Deveaux. 241 U.S., at 304. Thus, “all that was intended was to render this corporation capable of suing and being sued by its corporate name in any court . . . whose jurisdiction as otherwise competently defined was adequate to the occasion.” Id., at 303. Another lending dispute, involving defaulted bonds, led to the next statement on this issue. The Federal Deposit Insurance Corporation’s (FDIC) sue-and-be-sued clause authorized it “[t]o sue and be sued, complain and defend, in any court of law or equity, State or Federal.” 12 U.S. C. §264(j) (1940 ed.). In D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 455 (1942), this Court held that federal jurisdiction over the case was based on the FDIC’s sue-and-be-sued clause. See Red Cross, 505 U.S., at 254 (expressing no “doubt that the Court held federal jurisdic- tion to rest on the” sue-and-be-sued clause). This Court’s most recent discussion of a sue-and-be-sued clause came in Red Cross, which involved a state-law tort 8 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court suit related to a contaminated blood transfusion. It de- scribed the previous quartet of decisions as reflecting this Court’s “best efforts at divining congressional intent retro- spectively,” efforts that had put “Congress on prospective notice of the language necessary and sufficient to confer jurisdiction.” Id., at 252. Those decisions “support the rule that a congressional charter’s ‘sue and be sued’ provi- sion may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts.” Id., at 255. Under that rule, the Court explained, the result was “clear.” Id., at 257. The Red Cross’ sue-and-be-sued clause, which permits it to “sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States,” 36 U.S. C. §300105(a)(5), confers jurisdiction. Red Cross, 505 U.S., at 257. “In expressly authorizing [suits] in federal courts, using language . . . in all relevant respects identical to [the clause in D’Oench] on which [the Court] based a holding of federal jurisdiction just five years before [its enactment], the provision ex- tends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction.” Ibid. Armed with these earlier cases, as synthesized by Red Cross, we turn to the sue-and-be-sued clause at issue here. B Fannie Mae’s sue-and-be-sued clause resembles the clauses this Court has held confer jurisdiction in one important respect. In authorizing Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal,” 12 U.S. C. §1723a(a), it “specifically mentions the federal courts.” Red Cross, 505 U.S., at 255. This mention of the federal courts means that Fannie Mae’s charter clears a hurdle that the clauses in Deveaux and Bankers Trust did not. But Fannie Mae’s clause differs in a material respect from the three clauses the Court has held sufficient to Cite as: 580 U. S. ____ (2017) 9 Opinion of the Court grant federal jurisdiction. Those clauses referred to suits in the federal courts without qualification. In contrast, Fannie Mae’s sue-and-be-sued clause refers to “any court of competent jurisdiction, State or Federal.” §1723a(a) (emphasis added). Because this sue-and-be-sued clause is not “in all relevant respects identical” to a clause already held to grant federal jurisdiction, Red Cross, 505 U.S., at 257, this case cannot be resolved by a simple comparison. The outcome instead turns on the meaning of “court of competent jurisdiction” in Fannie Mae’s sue-and-be-sued clause. A court of competent jurisdiction is a court with the power to adjudicate the case before it. See Black’s Law Dictionary 431 (10th ed. 2014) (“[a] court that has the power and authority to do a particular act; one recognized by law as possessing the right to adjudicate a contro- versy”). And a court’s subject-matter jurisdiction defines its power to hear cases. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89 (1998) (Subject-matter jurisdiction is “the courts’ statutory or constitutional power to adjudicate the case” (emphasis deleted)); Wa- chovia Bank, N. A. v. Schmidt, 546 U.S. 303, 316 (2006) (“Subject-matter jurisdiction . . . concerns a court’s compe- tence to adjudicate a particular category of cases”). It follows that a court of competent jurisdiction is a court with a grant of subject-matter jurisdiction covering the case before it. Cf. Pennoyer v. Neff, 95 U.S. 714, 733 (1878) (“[T]here must be a tribunal competent by its con- stitution—that is, by the law of its creation—to pass upon the subject-matter of the suit”). As a result, this Court has understood the phrase “court of competent jurisdiction” as a reference to a court with an existing source of subject-matter jurisdiction. Ex parte Phenix Ins. Co., 118 U.S. 610 (1886), provides an example. There, the Court explained that a statute “providing for the transfer to a trustee of the interest of the owner in the 10 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court vessel and freight, provides only that the trustee may ‘be appointed by any court of competent jurisdiction,’ leaving the question of such competency to depend on other provi- sions of law.” Id., at 617. See also Shoshone Mining Co. v. Rutter, 177 U.S. 505, 506–507 (1900) (statute authorizing suit “ ‘in a court of competent jurisdiction’ . . . unquestion- ably meant that the competency of the court should be determined by rules theretofore prescribed in respect to the jurisdiction of the Federal courts”). Califano v. Sand- ers, 430 U.S. 99 (1977), provides another. It held that §10 of the Administrative Procedure Act, codified in 5 U.S. C. §§701–704, did not contain “an implied grant of subject- matter jurisdiction to review agency actions.” 430 U.S., at 105. In noting that “the actual text . . . nowhere contains an explicit grant of jurisdiction,” the Court pointed to two clauses requiring “judicial review . . . to proceed ‘in a court specified by statute’ or ‘in a court of competent jurisdic- tion’ ” and stated that both “seem to look to outside sources of jurisdictional authority.” Id., at 105–106, and n. 6. On this understanding, Fannie Mae’s sue-and-be-sued clause is most naturally read not to grant federal courts subject-matter jurisdiction over all cases involving Fannie Mae. In authorizing Fannie Mae to sue and be sued “in any court of competent jurisdiction, State or Federal,” it permits suit in any state or federal court already endowed with subject-matter jurisdiction over the suit. C Red Cross does not require a different result. Some, including the lower courts here, have understood it to set out a rule that an express reference to the federal courts suffices to make a sue-and-be-sued clause a grant of fed- eral jurisdiction. Red Cross contains no such rule. By its own terms, the rule Red Cross restates is “the basic rule” drawn in Deveaux and Osborn that a sue-and- be-sued clause conferring only a general right to sue does Cite as: 580 U. S. ____ (2017) 11 Opinion of the Court not grant jurisdiction to the federal courts. Red Cross, 505 U.S., at 253. Each mention of a “rule” refers back to this principle. See id., at 255 (reading this Court’s sue-and-be- sued clause cases to “support the rule that a . . . ‘sue and be sued’ provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts” (emphasis added)); id., at 256 (Bankers Trust applied “the rule thus established” to hold that the railroad’s sue-and-be-sued clause did not confer jurisdic- tion); 505 U.S., at 257 (finding the result “clear” under the “rule established in these cases” because the charter “ex- pressly authoriz[es]” suits in federal courts in a clause “in all relevant respects identical” to one already found to confer jurisdiction). True enough, the dissent thought Red Cross established a broad rule. See 505 U.S., at 271–272 (opinion of Scalia, J.) (describing Red Cross as announcing a “rule . . . that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction” (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red Cross. But Red Cross itself establishes no such rule. And such a rule is hard to square with the opinion’s thorough consideration of the contrary arguments based in text, purpose, and legislative history. See id., at 258–263. Nothing in Red Cross suggests that courts should ignore “the ordinary sense of the language used,” id., at 263, when confronted with a federal charter’s sue-and-be-sued clause that expressly references the federal courts, but only those that are courts “of competent jurisdiction.” III Fannie Mae, preferring to be in federal court, raises several arguments against reading its sue-and-be- sued clause as merely capacity conferring. None are persuasive. 12 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court A Fannie Mae first offers several alternative readings of “court of competent jurisdiction.” It suggests that the phrase might refer to a court with personal jurisdiction over the parties before it, a court of proper venue, or a court of general, rather than specialized, jurisdiction. Brief for Respondents 41–45. At bottom, Fannie Mae’s efforts on this front are prem- ised on the reading of Red Cross rejected above. In its view, an express reference to the federal courts suffices to confer subject-matter jurisdiction on federal courts. It sees its only remaining task as explaining why that would not render “court of competent jurisdiction” superfluous. See Tr. of Oral Arg. 29–30. But the fact that a sue-and-be- sued clause references the federal courts does not resolve the jurisdictional question. Thus, arguments as to why the phrase “court of competent jurisdiction” could still have meaning if it does not carry its ordinary meaning are beside the point. Moreover, even if the phrase carries additional meaning, that would not further Fannie Mae’s argument. Take its suggestion that a “court of competent jurisdiction” is a court with personal jurisdiction. A court must have the power to decide the claim before it (subject-matter juris- diction) and power over the parties before it (personal jurisdiction) before it can resolve a case. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–585 (1999). Rec- ognizing as much, this Court has stated that the phrase “court of competent jurisdiction,” while “usually used to refer to subject-matter jurisdiction, has also been used on occasion to refer to a court’s jurisdiction over the defend- ant’s person.” United States v. Morton, 467 U.S. 822, 828 (1984) (footnote omitted). See also Blackmar v. Guerre, 342 U.S. 512, 516 (1952). But nothing in Fannie Mae’s sue-and-be-sued clause suggests that the reference to “court of competent jurisdiction” refers only to a court with Cite as: 580 U. S. ____ (2017) 13 Opinion of the Court personal jurisdiction over the parties before it. At most then, this point might support reading the phrase to refer to both subject-matter and personal jurisdiction. That does not help Fannie Mae. So long as the sue-and-be-sued clause refers to an outside source of subject-matter juris- diction, it does not confer subject-matter jurisdiction. B Fannie Mae next claims that, by the time its sue-and-be- sued clause was enacted in 1954, courts had interpreted provisions containing the phrase “court of competent jurisdiction” to grant jurisdiction and that Congress was entitled to rely on those interpretations. This argument invokes the prior construction canon of statutory interpre- tation. The canon teaches that if courts have settled the meaning of an existing provision, the enactment of a new provision that mirrors the existing statutory text indi- cates, as a general matter, that the new provision has that same meaning. See Bragdon v. Abbott, 524 U.S. 624, 645 (1998). Fannie Mae points to cases discussing three types of statutory provisions that, in its view, show that the phrase “court of competent jurisdiction” had acquired a settled meaning by 1954. The first pair addresses the FHA’s sue-and-be-sued clause. See 12 U.S. C. §1702 (“sue and be sued in any court of competent jurisdiction, State or Federal”). Two Court of Appeals decisions in the 1940’s concluded that the FHA sue-and-be-sued clause overrode the general rule, today found in 28 U.S. C. §§1346(a)(2), 1491, that mone- tary claims against the United States exceeding $10,000 must be brought in the Court of Federal Claims, rather than the federal district courts. See Ferguson v. Union Nat. Bank of Clarksburg, 126 F.2d 753, 755–757 (CA4 1942); George H. Evans & Co. v. United States, 169 F.2d 500, 502 (CA3 1948). These courts did not state that their 14 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court jurisdiction was founded on the sue-and-be-sued clause, as opposed to statutes governing the original jurisdiction of the federal district courts. See, e.g., 28 U.S. C. §41(a) (1946 ed.). Thus, even assuming that two appellate court cases can “ ‘settle’ ” an issue, A. Scalia & B. Garner, Read- ing Law 325 (2012), these two cases did not because they did not speak to the question here. The second set of cases addresses provisions authorizing suit for a violation of a statute. One arose under the Fair Labor Standards Act of 1938, which authorizes employees to sue for violations of the Act in “any . . . court of compe- tent jurisdiction.” §6(d)(1), 88 Stat. 61, 29 U.S. C. §216(b). This Court, in its description of the facts, stated that “[j]urisdiction of the action was conferred by . . . 28 U.S. C. §41(8), and . . . 29 U.S. C. §216(b).” Williams v. Jacksonville Terminal Co., 315 U.S. 386, 390 (1942). This brief, ambiguous statement did not settle the meaning of §216(b), and thus did not settle the meaning of the phrase “court of competent jurisdiction.” The other cases in this set dealt with the Housing and Rent Act of 1947. As enacted, the statute permitted suit in “any Federal, State, or Territorial court of competent jurisdiction.” §206(b), 61 Stat. 199. Some courts read §206 not to confer jurisdiction and instead assessed their jurisdiction under the federal- question jurisdiction statute. See, e.g., Schuman v. Greenberg, 100 F. Supp. 187, 189 (NJ 1951) (collecting cases). At the time, that statute carried an amount-in- controversy requirement, 28 U.S. C. §41(1) (1946 ed.), and so some cases were dismissed or remanded to state court for lack of federal jurisdiction. Congress later amended §206 to permit suit “in any Federal court of competent jurisdiction regardless of the amount involved.” Defense Production Act Amendments of 1951, §204, 65 Stat. 147. Congress’ elimination of the amount-in-controversy re- quirement suggests, if anything, it understood that “court of competent jurisdiction” could be read to require an Cite as: 580 U. S. ____ (2017) 15 Opinion of the Court outside source of jurisdiction. The third set of cases interpreted provisions making federal jurisdiction over certain causes of action exclusive. Brief for Respondents 36–37. Those cases confirm that the provisions require suit to be brought in federal courts but do not discuss the basis for federal jurisdiction. In sum, none of the cases on which Fannie Mae relies suggest that Congress in 1954 would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue- and-be-sued clause containing the phrase “court of compe- tent jurisdiction” confers jurisdiction on the federal courts. C Fannie Mae ends with an appeal to congressional pur- pose, or, more accurately, a lack of congressional purpose. It argues that its original sue-and-be-sued clause, en- acted in 1934, granted jurisdiction to federal courts and that there is no indication that Congress wanted to change the status quo in 1954. The addition in 1954 of “court of competent jurisdiction,” a phrase that, as discussed, car- ries a clear meaning, means that the current sue-and-be- sued clause does not confer jurisdiction. An indication whether that meaning was understood as a change from the 1934 Act is not required.* Fannie Mae next points to its sibling rival, the Federal Home Loan Mortgage Corporation, known as Freddie Mac. The two share parallel authority to compete in the second- —————— * The legislative history of the 1934 Act provides some reason to question Fannie Mae’s premise about Congress’ view of the status quo under the 1934 Act. During debate on this provision, Senator Logan asked Senator Bulkley, the chair of the subcommittee with authority over the bill, about the original sue-and-be-sued clause. Senator Bulkley explained that it merely conferred a capacity to sue and be sued “and [did] not confe[r] a right to go into a Federal court where it would not otherwise exist.” 78 Cong. Rec. 12008 (1934). 16 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court ary mortgage market. Compare 12 U.S. C. §§1717(b)(2)– (6) (Fannie Mae) with §1454(a) (Freddie Mac). Suits involving Freddie Mac may be brought in federal court. See §1452(c) (“to sue and be sued, complain and defend, in any State, Federal, or other court”); §1452(f) (providing that Freddie Mac is a federal agency under 28 U.S. C. §§1345, 1442, that civil actions to which Freddie Mac is a party arise under federal law, and that Freddie Mac may remove cases to federal district court before trial). Fannie Mae argues there is no good reason to think that Congress gave Freddie Mac fuller access to the federal courts than it has. Leaving aside the clear textual indica- tions suggesting Congress did just that, a plausible reason does exist. In 1970, when Freddie Mac’s sue-and-be-sued clause and related jurisdictional provisions were enacted, Freddie Mac was a Government-owned corporation. See Emergency Home Finance Act of 1970, §304(a), 84 Stat. 454. Fannie Mae, on the other hand, had already transi- tioned into a privately owned corporation. Fannie Mae’s argument on this front, moreover, contains a deeper flaw. The doors to federal court remain open to Fannie Mae through diversity and federal-question jurisdiction. Fan- nie Mae provides no reason to think that in other cases, involving only state-law claims, access to the federal courts gives Freddie Mac an unintended competitive ad- vantage over Fannie Mae that Congress would have wanted to avoid. Indeed, the usual assumption is that state courts are up to the task of adjudicating their own laws. Cf. Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 483– 484 (1981). IV The judgment of the Ninth Circuit is reversed. It is so ordered

The corporate charter of the Federal National Mortgage Association, known as Fannie Mae, authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S. C. This case presents the question whether this sue-and-be-sued clause grants federal dis- trict courts jurisdiction over cases involving Fannie Mae. We hold that it does not. I A During the Great Depression, the Federal Government worked to stabilize and strengthen the residential mort- gage market. Among other things, it took steps to in- crease liquidity (reasonably available funding) in the mortgage market. These efforts included the creation of the Federal Home Loan Banks, which provide credit to member institutions to finance affordable housing and economic development projects, and the Federal Housing Administration (FHA), which insures residential mort- 2 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court gages. See Dept. of Housing and Urban Development, Back- ground and History of the Federal National Mortgage Association 1–7, A4 (1966). Also as part of these efforts, Title III of the National Housing Act (1934 Act) authorized the Administrator of the newly created FHA to establish “national mortgage associations” that could “purchase and sell [certain] first mortgages and such other first liens” and “borrow money for such purposes.” –1253. The associations were endowed with certain powers, including the power to “sue and be sued, complain and defend, in any court of law or equity, State or Federal.” at 1253. In 1938, the FHA Administrator exercised that author- ity and chartered the Federal National Mortgage Associa- tion. Avoiding a mouthful of an acronym (FNMA), it went by Fannie Mae. See, e.g., Washington Post, July 14, 1940, p. P2 (“ ‘Fanny May’ ”); N. Y. Times, Mar. 23, 1950, p. 48 (“ ‘Fannie Mae’ ”). As originally chartered, Fannie Mae was wholly owned by the Federal Government and had three objectives: to “establish a market for [FHA-insured] first mortgages” covering new housing construction, to “facilitate the construction and financing of economically sound rental housing projects,” and to “make [the bonds it issued] available to investors.” Fed. Nat. Mortgage Assn. Information Regarding the Activities of the Assn. 1 (Circular No. 1, 1938). Fannie Mae was rechartered in 1954. Housing Act of 1954 (1954 Act), No longer wholly Government owned, Fannie Mae had mixed ownership: Private shareholders held its common stock and the De- partment of the Treasury held its preferred stock. The 1954 Act required the Secretary of the Treasury to allow Fannie Mae to repurchase that stock. See at 613–615. It expected that Fannie Mae would repurchase all of its preferred stock and that legislation would then be enacted Cite as: 580 U. S. (2017) 3 Opinion of the Court to turn Fannie Mae over to the private stockholders. From then on, Fannie Mae’s duties would “be carried out by a privately owned and privately financed corporation.” Along with these structural changes, the 1954 Act replaced Fannie Mae’s initial set of powers with a more detailed list. In doing so, it revised the sue-and-be- sued clause to give Fannie Mae the power “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” In 1968, Fannie Mae became fully privately owned and relinquished part of its portfolio to its new spinoff, the Government National Mortgage Association (known as Ginnie Mae). See Housing and Urban Development Act of 1968 (1968 Act), Fannie Mae “continue[d] to operate the secondary market operations” but became “a Government-sponsored private corporation.” 12 U.S. C. Ginnie Mae “remain[ed] in the Government” and took over “the special assistance functions and manage- ment and liquidating functions.” Ginnie Mae re- ceived the same set of powers as Fannie Mae. See see also 1968 Act, (minor revisions to This general structure remains in place. Fannie Mae continues to participate in the secondary mortgage mar- ket. It purchases mortgages that meet its eligibility criteria, packages them into mortgage-backed securities, and sells those securities to investors, and it invests in mortgage- backed securities itself. One of those mortgage purchases led to Fannie Mae’s entanglement in this case. B Beverly Ann Hollis-Arrington refinanced her mortgage with Cendant Mortgage Corporation (Cendant) in the summer of 1999. Fannie Mae then bought the mortgage, while Cendant continued to service it. Unable to make her payments, Hollis-Arrington pursued a forbearance ar- 4 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court rangement with Cendant. No agreement materialized, and the home entered foreclosure. Around this time, Cendant repurchased the mortgage from Fannie Mae because it did not meet Fannie Mae’s credit standards. To stave off the foreclosure, Hollis-Arrington and her daughter, Crystal Lightfoot, pursued bankruptcy and transferred the property between themselves. These ef- forts failed, and the home was sold at a trustee’s sale in 2001. The two then took to the courts to try to undo the foreclosure and sale. After two unsuccessful federal suits, the pair filed this suit in state court. They alleged that deficiencies in the refinancing, foreclosure, and sale of their home entitled them to relief against Fannie Mae. Their claims against other defendants are not relevant here. Fannie Mae removed the case to federal court under 28 U.S. C. which permits a defendant to remove from state to federal court “any civil action” over which the federal district courts “have original jurisdiction.” It relied on its sue-and-be-sued clause as the basis for jurisdiction. The District Court denied a motion to remand the case to state court. The District Court then dismissed the claims against Fannie Mae on claim preclusion grounds. After a series of motions, rulings, and appeals not related to the issue here, the District Court entered final judgment. Hollis- Arrington and Lightfoot immediately moved to set aside the judgment under Federal Rule of Civil Procedure 60(b), alleging “fraud upon the court.” App. 95–110. The Dis- trict Court denied the motion. The Ninth Circuit affirmed the dismissal of the case and the denial of the Rule 60(b) motion. (2012). After Hollis-Arrington and Lightfoot sought re- hearing, the Ninth Circuit withdrew its opinion and or- dered briefing on the question whether the District Court had jurisdiction over the case under Fannie Mae’s sue- Cite as: 580 U. S. (2017) 5 Opinion of the Court and-be-sued clause. A divided panel affirmed the District Court’s judgment. The majority relied on American Nat. Red It read that decision to have estab- lished a “rule [that] resolves this case”: When a sue-and- be-sued clause in a federal charter expressly authorizes suit in federal courts, it confers jurisdiction on the federal The dissent instead read Red as setting out only a “ ‘default rule’ ” that provides a “starting point for [the] analysis.” (opin- ion of Stein, J.). It read “any court of competent jurisdic- tion” in Fannie Mae’s sue-and-be-sued clause to overcome that default rule by requiring an independent source for jurisdiction in cases involving Fannie Mae. Two Circuits have likewise concluded that the language in Fannie Mae’s sue-and-be-sued clause grants jurisdiction to federal See Federal Home Loan Bank of Boston v. Moody’s Corp., (Federal Home Loan Bank of Boston’s identical sue-and-be-sued clause); Pirelli Armstrong Tire Corp. Retiree Medical Benefits Trust ex rel. Fed. Nat. Mortgage Assn. v. Raines, 534 F.3d 779 (CADC 2008) (Fannie Mae’s sue-and-be-sued clause). Four Circuits have disagreed, finding that similar lan- guage did not grant jurisdiction. See Western Securities (Under 38 U.S. C. (1988 ed.), Secretary of Veterans Affairs’ authority to “sue and be sued in any court of competent jurisdiction, State or Federal”); C. H. Sanders Co. v. BHAP Housing Development Fund Co., 903 F.2d 114 (CA2 1990) (Under 12 U.S. C. (1988 ed.), Secre- tary of Housing and Urban Development’s authority “in his official capacity, to sue and be sued in any court of competent jurisdiction, State or Federal”); Industrial Indemnity, ( per curiam) (similar); (CA3 1974) (similar). 6 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court We granted certiorari, 579 U. S. and now reverse. II Fannie Mae’s sue-and-be-sued clause authorizes it “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U.S. C. As in other federal corporate charters, this language serves the uncontroversial function of clari- fying Fannie Mae’s capacity to bring suit and to be sued. See Bank of United 85–86 (1809). The question here is whether Fannie Mae’s sue- and-be-sued clause goes further and grants federal courts jurisdiction over all cases involving Fannie Mae. A In answering this question, “we do not face a clean slate.” Red This Court has ad- dressed the jurisdictional reach of sue-and-be-sued clauses in five federal charters. Three clauses were held to grant jurisdiction, while two were found wanting. The first discussion of sue-and-be-sued clauses came in a pair of opinions by Chief Justice Marshall. The charter of the first Bank of the United States allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever.’ ” Another provision allowed suits in federal court against certain bank officials, suggesting “the right to sue does not imply a right to sue in the courts of the union, unless it be expressed.” In light of this language, the Court held that the first Bank of the United States had “no right to sue in the federal ” The Court con- cluded that the second Bank of the United States was not similarly disabled. Its charter allowed it “ ‘to sue and be sued, plead and be impleaded, answer and be answered, Cite as: 580 U. S. (2017) 7 Opinion of the Court defend and be defended, in all State Courts having compe- tent jurisdiction, and in any Circuit Court of the United States.’ ” 817 (1824). The Court took from “that a general capacity in the Bank to sue, without mentioning the Courts of the Union, may not give a right to sue in those Courts.” By contrast, the second Bank’s charter did grant jurisdiction to the federal circuit courts because it used “words expressly conferring a right to sue in those Courts.” A mortgage dispute between a railroad and its creditor led to the next consideration of this issue. The Texas and Pacific Railway Company’s federal charter authorized it “ ‘to sue and be sued, plead and be impleaded, defend and be defended, in all courts of law and equity within the United States.’ ” Bankers Trust This Court held that the clause had “the same generality and natural import as” the clause in Thus, “all that was intended was to render this corporation capable of suing and being sued by its corporate name in any court whose jurisdiction as otherwise competently defined was adequate to the occasion.” Another lending dispute, involving defaulted bonds, led to the next statement on this issue. The Federal Deposit Insurance Corporation’s (FDIC) sue-and-be-sued clause authorized it “[t]o sue and be sued, complain and defend, in any court of law or equity, State or Federal.” 12 U.S. C. (1940 ed.). In D’Oench, Duhme & Co. v. FDIC, this Court held that federal jurisdiction over the case was based on the FDIC’s sue-and-be-sued clause. See Red (expressing no “doubt that the Court held federal jurisdic- tion to rest on the” sue-and-be-sued clause). This Court’s most recent discussion of a sue-and-be-sued clause came in Red which involved a state-law tort 8 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court suit related to a contaminated blood transfusion. It de- scribed the previous quartet of decisions as reflecting this Court’s “best efforts at divining congressional intent retro- spectively,” efforts that had put “Congress on prospective notice of the language necessary and sufficient to confer jurisdiction.” Those decisions “support the rule that a congressional charter’s ‘sue and be sued’ provi- sion may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal ” at 255. Under that rule, the Court explained, the result was “clear.” The Red ’ sue-and-be-sued clause, which permits it to “sue and be sued in courts of law and equity, State or Federal, within the jurisdiction of the United States,” 36 U.S. C. confers jurisdiction. Red 505 U.S., “In expressly authorizing [suits] in federal courts, using language in all relevant respects identical to [the clause in D’Oench] on which [the Court] based a holding of federal jurisdiction just five years before [its enactment], the provision ex- tends beyond a mere grant of general corporate capacity to sue, and suffices to confer federal jurisdiction.” Armed with these earlier cases, as synthesized by Red we turn to the sue-and-be-sued clause at issue here. B Fannie Mae’s sue-and-be-sued clause resembles the clauses this Court has held confer jurisdiction in one important respect. In authorizing Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal,” 12 U.S. C. it “specifically mentions the federal ” Red This mention of the federal courts means that Fannie Mae’s charter clears a hurdle that the clauses in and Bankers Trust did not. But Fannie Mae’s clause differs in a material respect from the three clauses the Court has held sufficient to Cite as: 580 U. S. (2017) 9 Opinion of the Court grant federal jurisdiction. Those clauses referred to suits in the federal courts without qualification. In contrast, Fannie Mae’s sue-and-be-sued clause refers to “any court of competent jurisdiction, State or Federal.” (emphasis added). Because this sue-and-be-sued clause is not “in all relevant respects identical” to a clause already held to grant federal jurisdiction, Red 505 U.S., at 257, this case cannot be resolved by a simple comparison. The outcome instead turns on the meaning of “court of competent jurisdiction” in Fannie Mae’s sue-and-be-sued clause. A court of competent jurisdiction is a court with the power to adjudicate the case before it. See Black’s Law Dictionary 431 (“[a] court that has the power and authority to do a particular act; one recognized by law as possessing the right to adjudicate a contro- versy”). And a court’s subject-matter jurisdiction defines its power to hear cases. See Steel (Subject-matter jurisdiction is “the courts’ statutory or constitutional power to adjudicate the case” (emphasis deleted)); Wa- chovia Bank, N. (“Subject-matter jurisdiction concerns a court’s compe- tence to adjudicate a particular category of cases”). It follows that a court of competent jurisdiction is a court with a grant of subject-matter jurisdiction covering the case before it. Cf. (1878) (“[T]here must be a tribunal competent by its con- stitution—that is, by the law of its creation—to pass upon the subject-matter of the suit”). As a result, this Court has understood the phrase “court of competent jurisdiction” as a reference to a court with an existing source of subject-matter jurisdiction. Ex parte Phenix Ins. Co., provides an example. There, the Court explained that a statute “providing for the transfer to a trustee of the interest of the owner in the 10 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court vessel and freight, provides only that the trustee may ‘be appointed by any court of competent jurisdiction,’ leaving the question of such competency to depend on other provi- sions of law.” See also Shoshone Mining Co. v. Rutter, (statute authorizing suit “ ‘in a court of competent jurisdiction’ unquestion- ably meant that the competency of the court should be determined by rules theretofore prescribed in respect to the jurisdiction of the Federal courts”). provides another. It held that of the Administrative Procedure Act, codified in 5 U.S. C. did not contain “an implied grant of subject- matter jurisdiction to review agency actions.” 430 U.S., at 105. In noting that “the actual text nowhere contains an explicit grant of jurisdiction,” the Court pointed to two clauses requiring “judicial review to proceed ‘in a court specified by statute’ or ‘in a court of competent jurisdic- tion’ ” and stated that both “seem to look to outside sources of jurisdictional authority.” at 105–106, and n. 6. On this understanding, Fannie Mae’s sue-and-be-sued clause is most naturally read not to grant federal courts subject-matter jurisdiction over all cases involving Fannie Mae. In authorizing Fannie Mae to sue and be sued “in any court of competent jurisdiction, State or Federal,” it permits suit in any state or federal court already endowed with subject-matter jurisdiction over the suit. C Red does not require a different result. Some, including the lower courts here, have understood it to set out a rule that an express reference to the federal courts suffices to make a sue-and-be-sued clause a grant of fed- eral jurisdiction. Red contains no such rule. By its own terms, the rule Red restates is “the basic rule” drawn in and Osborn that a sue-and- be-sued clause conferring only a general right to sue does Cite as: 580 U. S. (2017) 11 Opinion of the Court not grant jurisdiction to the federal Red 505 U.S., at 253. Each mention of a “rule” refers back to this principle. See (reading this Court’s sue-and-be- sued clause cases to “support the rule that a ‘sue and be sued’ provision may be read to confer federal court jurisdiction if, but only if, it specifically mentions the federal courts” (emphasis added)); (Bankers Trust applied “the rule thus established” to hold that the railroad’s sue-and-be-sued clause did not confer jurisdic- tion); 505 U.S., (finding the result “clear” under the “rule established in these cases” because the charter “ex- pressly authoriz[es]” suits in federal courts in a clause “in all relevant respects identical” to one already found to confer jurisdiction). True enough, the dissent thought Red established a broad rule. See –272 (opinion of Scalia, J.) (describing Red as announcing a “rule that any grant of a general capacity to sue with mention of federal courts will suffice to confer jurisdiction” (emphasis deleted)). The certainty of the dissent may explain the lower court decisions adopting a broader reading of Red But Red itself establishes no such rule. And such a rule is hard to square with the opinion’s thorough consideration of the contrary arguments based in text, purpose, and legislative history. See at 258–263. Nothing in Red suggests that courts should ignore “the ordinary sense of the language used,” when confronted with a federal charter’s sue-and-be-sued clause that expressly references the federal courts, but only those that are courts “of competent jurisdiction.” III Fannie Mae, preferring to be in federal court, raises several arguments against reading its sue-and-be- sued clause as merely capacity conferring. None are persuasive. 12 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court A Fannie Mae first offers several alternative readings of “court of competent jurisdiction.” It suggests that the phrase might refer to a court with personal jurisdiction over the parties before it, a court of proper venue, or a court of general, rather than specialized, jurisdiction. Brief for Respondents 41–45. At bottom, Fannie Mae’s efforts on this front are prem- ised on the reading of Red rejected above. In its view, an express reference to the federal courts suffices to confer subject-matter jurisdiction on federal It sees its only remaining task as explaining why that would not render “court of competent jurisdiction” superfluous. See Tr. of Oral Arg. 29–30. But the fact that a sue-and-be- sued clause references the federal courts does not resolve the jurisdictional question. Thus, arguments as to why the phrase “court of competent jurisdiction” could still have meaning if it does not carry its ordinary meaning are beside the point. Moreover, even if the phrase carries additional meaning, that would not further Fannie Mae’s argument. Take its suggestion that a “court of competent jurisdiction” is a court with personal jurisdiction. A court must have the power to decide the claim before it (subject-matter juris- diction) and power over the parties before it (personal jurisdiction) before it can resolve a case. See Ruhrgas AG v. Marathon Oil Co., Rec- ognizing as much, this Court has stated that the phrase “court of competent jurisdiction,” while “usually used to refer to subject-matter jurisdiction, has also been used on occasion to refer to a court’s jurisdiction over the defend- ant’s person.” United (1984) (footnote omitted). See also But nothing in Fannie Mae’s sue-and-be-sued clause suggests that the reference to “court of competent jurisdiction” refers only to a court with Cite as: 580 U. S. (2017) 13 Opinion of the Court personal jurisdiction over the parties before it. At most then, this point might support reading the phrase to refer to both subject-matter and personal jurisdiction. That does not help Fannie Mae. So long as the sue-and-be-sued clause refers to an outside source of subject-matter juris- diction, it does not confer subject-matter jurisdiction. B Fannie Mae next claims that, by the time its sue-and-be- sued clause was enacted in 1954, courts had interpreted provisions containing the phrase “court of competent jurisdiction” to grant jurisdiction and that Congress was entitled to rely on those interpretations. This argument invokes the prior construction canon of statutory interpre- tation. The canon teaches that if courts have settled the meaning of an existing provision, the enactment of a new provision that mirrors the existing statutory text indi- cates, as a general matter, that the new provision has that same meaning. See Fannie Mae points to cases discussing three types of statutory provisions that, in its view, show that the phrase “court of competent jurisdiction” had acquired a settled meaning by 1954. The first pair addresses the FHA’s sue-and-be-sued clause. See 12 U.S. C. (“sue and be sued in any court of competent jurisdiction, State or Federal”). Two Court of Appeals decisions in the 1940’s concluded that the FHA sue-and-be-sued clause overrode the general rule, today found in 28 U.S. C. 1491, that mone- tary claims against the United States exceeding $10,000 must be brought in the Court of Federal Claims, rather than the federal district See 755–757 ; George H. Evans & Co. v. United States, 169 F.2d 500, 502 (CA3 1948). These courts did not state that their 14 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court jurisdiction was founded on the sue-and-be-sued clause, as opposed to statutes governing the original jurisdiction of the federal district See, e.g., 28 U.S. C. (1946 ed.). Thus, even assuming that two appellate court cases can “ ‘settle’ ” an issue, A. Scalia & B. Garner, Read- ing Law 325 (2012), these two cases did not because they did not speak to the question here. The second set of cases addresses provisions authorizing suit for a violation of a statute. One arose under the Fair Labor Standards Act of 1938, which authorizes employees to sue for violations of the Act in “any court of compe- tent jurisdiction.” 29 U.S. C. This Court, in its description of the facts, stated that “[j]urisdiction of the action was conferred by 28 U.S. C. and 29 U.S. C. ” Williams v. Jacksonville Terminal Co., This brief, ambiguous statement did not settle the meaning of and thus did not settle the meaning of the phrase “court of competent jurisdiction.” The other cases in this set dealt with the Housing and Rent Act of 1947. As enacted, the statute permitted suit in “any Federal, State, or Territorial court of competent jurisdiction.” 61 Stat. 199. Some courts read not to confer jurisdiction and instead assessed their jurisdiction under the federal- question jurisdiction statute. See, e.g., Schuman v. Greenberg, 1 (collecting cases). At the time, that statute carried an amount-in- controversy requirement, 28 U.S. C. (1946 ed.), and so some cases were dismissed or remanded to state court for lack of federal jurisdiction. Congress later amended to permit suit “in any Federal court of competent jurisdiction regardless of the amount involved.” Defense Production Act Amendments of Congress’ elimination of the amount-in-controversy re- quirement suggests, if anything, it understood that “court of competent jurisdiction” could be read to require an Cite as: 580 U. S. (2017) 15 Opinion of the Court outside source of jurisdiction. The third set of cases interpreted provisions making federal jurisdiction over certain causes of action exclusive. Brief for Respondents 36–37. Those cases confirm that the provisions require suit to be brought in federal courts but do not discuss the basis for federal jurisdiction. In sum, none of the cases on which Fannie Mae relies suggest that Congress in 1954 would have surveyed the jurisprudential landscape and necessarily concluded that the courts had already settled the question whether a sue- and-be-sued clause containing the phrase “court of compe- tent jurisdiction” confers jurisdiction on the federal C Fannie Mae ends with an appeal to congressional pur- pose, or, more accurately, a lack of congressional purpose. It argues that its original sue-and-be-sued clause, en- acted in 1934, granted jurisdiction to federal courts and that there is no indication that Congress wanted to change the status quo in 1954. The addition in 1954 of “court of competent jurisdiction,” a phrase that, as discussed, car- ries a clear meaning, means that the current sue-and-be- sued clause does not confer jurisdiction. An indication whether that meaning was understood as a change from the 1934 Act is not required.* Fannie Mae next points to its sibling rival, the Federal Home Loan Mortgage Corporation, known as Freddie Mac. The two share parallel authority to compete in the second- —————— * The legislative history of the 1934 Act provides some reason to question Fannie Mae’s premise about Congress’ view of the status quo under the 1934 Act. During debate on this provision, Senator Logan asked Senator Bulkley, the chair of the subcommittee with authority over the bill, about the original sue-and-be-sued clause. Senator Bulkley explained that it merely conferred a capacity to sue and be sued “and [did] not confe[r] a right to go into a Federal court where it would not otherwise exist.” 78 Cong. Rec. 12008 (1934). 16 LIGHTFOOT v. CENDANT MORTGAGE CORP. Opinion of the Court ary mortgage market. Compare 12 U.S. C. (6) (Fannie Mae) with (Freddie Mac). Suits involving Freddie Mac may be brought in federal court. See (“to sue and be sued, complain and defend, in any State, Federal, or other court”); (providing that Freddie Mac is a federal agency under 28 U.S. C. 1442, that civil actions to which Freddie Mac is a party arise under federal law, and that Freddie Mac may remove cases to federal district court before trial). Fannie Mae argues there is no good reason to think that Congress gave Freddie Mac fuller access to the federal courts than it has. Leaving aside the clear textual indica- tions suggesting Congress did just that, a plausible reason does exist. In 1970, when Freddie Mac’s sue-and-be-sued clause and related jurisdictional provisions were enacted, Freddie Mac was a Government-owned corporation. See Emergency Home Finance Act of 1970, 84 Stat. 454. Fannie Mae, on the other hand, had already transi- tioned into a privately owned corporation. Fannie Mae’s argument on this front, moreover, contains a deeper flaw. The doors to federal court remain open to Fannie Mae through diversity and federal-question jurisdiction. Fan- nie Mae provides no reason to think that in other cases, involving only state-law claims, access to the federal courts gives Freddie Mac an unintended competitive ad- vantage over Fannie Mae that Congress would have wanted to avoid. Indeed, the usual assumption is that state courts are up to the task of adjudicating their own laws. Cf. Gulf Offshore 483– 484 (1981). IV The judgment of the Ninth Circuit is reversed. It is so ordered

Justice Kagan

majority

Kansas v. Nebraska

2015-02-24

https://www.courtlistener.com/opinion/2781442/kansas-v-nebraska/

https://www.courtlistener.com/api/rest/v3/clusters/2781442/

2014-007

For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States’ rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact’s terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief—both partial disgorgement of gains and an injunction—for Nebraska’s conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appen­ dix to the settlement, so that allocations of water will faithfully reflect the parties’ intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix. I The Republican River originates in Colorado; crosses the 2 KANSAS v. NEBRASKA Opinion of the Court northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributar­ ies, the river drains a 24,900-square-mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn. During the Dust Bowl of the 1930’s, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. In response, the Federal Govern­ ment proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irriga­ tion projects to disperse the stored water. But the Gov­ ernment insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 1943, as required under the Constitution, Art. I, §10, cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 1943, ch. 104, 57 Stat. 86. The Compact apportions among the three States the “virgin water supply originating in”—and, as we will later discuss, originating only in—the Republican River Basin. Compact Art. III; see infra, at 20–28. “Virgin water sup­ ply,” as used in the Compact, means “the water supply within the Basin,” in both the River and its tributaries, “undepleted by the activities of man.” Compact Art. II. The Compact gives each State a set share of that supply— roughly, 49% to Nebraska, 40% to Kansas, and 11% to Colorado—for any “beneficial consumptive use.” Id., Art. IV; see Art. II (defining that term to mean “that use by which the water supply of the Basin is consumed through the activities of man”). In addition, the Compact charges the chief water official of each State with respon­ sibility to jointly administer the agreement. See id., Art. IX. Pursuant to that provision, the States created the Cite as: 574 U. S. ____ (2015) 3 Opinion of the Court Republican River Compact Administration (RRCA). The RRCA’s chief task is to calculate the Basin’s annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State’s use of that water has stayed within its allocation. All was smooth sailing for decades, until Kansas com­ plained to this Court about Nebraska’s increased pumping of groundwater, resulting from that State’s construction of “thousands of wells hydraulically connected to the Repub­ lican River and its tributaries.” Bill of Complaint, O. T. 1997, No. 126, Orig., p. 5 (May 26, 1998). Kansas con­ tended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State’s annual allotment of water.1 Nebraska maintained, to the con­ trary, that groundwater pumping fell outside the Com­ pact’s scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kan­ sas’s interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See Kansas v. Nebraska, 530 U.S. 1272 (2000). The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin’s stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement). The Settlement established detailed mechanisms to promote compliance with the Compact’s terms. The States —————— 1 As we will later discuss, groundwater pumping does not diminish stream flow (and thus the Basin’s “virgin water supply”) at a 1-to-1 ratio. See Report of Special Master 19 (Report); infra, at 21–22. In other words, a State can pump a bucketful of groundwater without reducing stream flow by the same amount. 4 KANSAS v. NEBRASKA Opinion of the Court agreed that the Settlement was not “intended to, nor could [it], change [their] respective rights and obligations under the Compact.” Settlement §I(D). Rather, the agreement aimed to accurately measure the supply and use of the Basin’s water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctu­ ations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5-year running averages, reduced to 2-year averages in “water-short” periods. Id., §§IV(D), V(B). That change gave each State a chance to compensate for one (or more) year’s overuse with another (or more) year’s underuse before exceeding its allocation. The Settlement further provided, in line with this Court’s decision, that groundwater pumping would count as part of a State’s consumption to the extent it depleted the Basin’s stream flow. An appendix to the agreement called the “Accounting Procedures” described how a later- developed “Groundwater Model” (essentially, a mass of computer code) would perform those computations. Id., App. C; id., App. J1. And finally, the Settlement made clear, in accordance with the Compact, that a State’s use of “imported water”—that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River—would not count toward the State’s allocation, because it did not originate in the Basin. Id., §§II, IV(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption. But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005–2006 accounting period—the first for which the Settlement held States responsible—Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water— Cite as: 574 U. S. ____ (2015) 5 Opinion of the Court specifically, for water originating in the Platte River Ba­ sin. The States brought those disputes to the RRCA and then to non-binding arbitration, in accordance with the Settlement’s dispute resolution provisions. After failing to resolve the disagreements in those forums, Kansas sought redress in this Court, petitioning for both monetary and injunctive relief. We referred the case to a Special Master to consider Kansas’s claims. See 563 U. S. ___ (2011). In that proceeding, Nebraska asserted a counterclaim re­ questing a modification of the Accounting Procedures to ensure that its use of Platte River water would not count toward its Compact allocation. After two years of conducting hearings, receiving evi­ dence, and entertaining legal arguments, the Special Master issued his report and recommendations. The Master concluded that Nebraska had “knowingly failed” to comply with the Compact in the 2005–2006 accounting period, by consuming 70,869 acre-feet of water in excess of its prescribed share.2 Report 112. To remedy that breach, the Master proposed awarding Kansas $3.7 million for its loss, and another $1.8 million in partial disgorgement of Nebraska’s still greater gains. The Master, however, thought that an injunction against Nebraska was not warranted. In addition, the Master recommended reform­ ing the Accounting Procedures in line with Nebraska’s request, to ensure that the State would not be charged with using Platte River water. Kansas and Nebraska each filed exceptions in this Court to parts of the Special Master’s report.3 Nebraska objects —————— 2 An acre-foot of water is pretty much what it sounds like. If you took an acre of land and covered it evenly with water one foot deep, you would have an acre-foot of water. 3 Colorado has also played a minor part in this dispute, and in this Court it filed a brief reiterating one of Nebraska’s exceptions. Because Kansas and Nebraska are the primary antagonists here, we will refer to that claim only as Nebraska’s. From here on in, Colorado drops off 6 KANSAS v. NEBRASKA Opinion of the Court to the Master’s finding of a “knowing” breach and his call for partial disgorgement of its gains. Kansas asserts that the Master should have recommended both a larger dis­ gorgement award and injunctive relief; the State also objects to his proposed change to the Accounting Proce­ dures. In reviewing those claims, this Court gives the Special Master’s factual findings “respect and a tacit presumption of correctness.” Colorado v. New Mexico, 467 U.S. 310, 317 (1984). But we conduct an “independent review of the record,” and assume “the ultimate responsi­ bility for deciding” all matters. Ibid. Having carried out that careful review, we now overrule all exceptions and adopt the Master’s recommendations. II The Constitution gives this Court original jurisdiction to hear suits between the States. See Art. III, §2. Proceed­ ings under that grant of jurisdiction are “basically equi­ table in nature.” Ohio v. Kentucky, 410 U.S. 641, 648 (1973). When the Court exercises its original jurisdiction over a controversy between two States, it serves “as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force.” North Dakota v. Minnesota, 263 U.S. 365, 372–373 (1923). That role significantly “differ[s] from” the one the Court under­ takes “in suits between private parties.” Id., at 372; see Frankfurter & Landis, The Compact Clause of the Consti­ tution—A Study in Interstate Adjustments, 34 Yale L. J. 685, 705 (1925) (When a “controversy concerns two States we are at once in a world wholly different from that of a law-suit between John Doe and Richard Roe over the metes and bounds of Blackacre”). In this singular sphere, “the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the —————— the map (so to speak). Cite as: 574 U. S. ____ (2015) 7 Opinion of the Court purposes of justice.” Kentucky v. Dennison, 24 How. 66, 98 (1861). Two particular features of this interstate controversy further distinguish it from a run-of-the-mill private suit and highlight the essentially equitable character of our charge. The first relates to the subject matter of the Com­ pact and Settlement: rights to an interstate waterway. The second concerns the Compact’s status as not just an agreement, but a federal law. Before proceeding to the merits of this dispute, we say a few words about each. This Court has recognized for more than a century its inherent authority, as part of the Constitution’s grant of original jurisdiction, to equitably apportion interstate streams between States. In Kansas v. Colorado, 185 U.S. 125, 145 (1902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus “wholly depriv[ing]” a downstream State “of the benefit of water” that “by nature” would flow into its territory. In such a circumstance, the downstream State lacks the sovereign’s usual power to respond—the capacity to “make war[,] . . . grant letters of marque and reprisal,” or even enter into agreements without the con­ sent of Congress. Id., at 143 (internal quotation marks omitted). “Bound hand and foot by the prohibitions of the Constitution, . . . a resort to the judicial power is the only means left” for stopping an inequitable taking of water. Id., at 144 (quoting Rhode Island v. Massachusetts, 12 Pet. 657, 726 (1838)). This Court’s authority to apportion interstate streams encourages States to enter into compacts with each other. When the division of water is not “left to the pleasure” of the upstream State, but States instead “know[ ] that some tribunal can decide on the right,” then “controversies will [probably] be settled by compact.” Kansas v. Colorado, 185 U.S., at 144. And that, of course, is what happened here: Kansas and Nebraska negotiated a compact to divide 8 KANSAS v. NEBRASKA Opinion of the Court the waters of the Republican River and its tributaries. Our role thus shifts: It is now to declare rights under the Compact and enforce its terms. See Texas v. New Mexico, 462 U.S. 554, 567 (1983). But in doing so, we remain aware that the States bar­ gained for those rights in the shadow of our equitable apportionment power—that is, our capacity to prevent one State from taking advantage of another. Each State’s “right to invoke the original jurisdiction of this Court [is] an important part of the context” in which any compact is made. Id., at 569. And it is “difficult to conceive” that a downstream State “would trade away its right” to our equitable apportionment if, under such an agreement, an upstream State could avoid its obligations or otherwise continue overreaching. Ibid. Accordingly, our enforce­ ment authority includes the ability to provide the reme­ dies necessary to prevent abuse. We may invoke equitable principles, so long as consistent with the compact itself, to devise “fair . . . solution[s]” to the state-parties’ disputes and provide effective relief for their violations. Texas v. New Mexico, 482 U.S. 124, 134 (1987) (supplying an “ad­ ditional enforcement mechanism” to ensure an upstream State’s compliance with a compact).4 And that remedial authority gains still greater force because the Compact, having received Congress’s blessing, counts as federal law. See Cuyler v. Adams, 449 U.S. 433, 438 (1981) (“[C]ongressional consent transforms an inter­ state compact . . . into a law of the United States”). Of course, that legal status underscores a limit on our en­ forcement power: We may not “order relief inconsistent with [a compact’s] express terms.” Texas v. New Mexico, —————— 4 JUSTICE THOMAS misdescribes this aspect of our decision. See post, at 3, 15 (opinion concurring in part and dissenting in part) (hereinafter the dissent). Far from claiming the power to alter a compact to fit our own views of fairness, we insist only upon broad remedial authority to enforce the Compact’s terms and deter future violations. Cite as: 574 U. S. ____ (2015) 9 Opinion of the Court 462 U.S., at 564. But within those limits, the Court may exercise its full authority to remedy violations of and promote compliance with the agreement, so as to give complete effect to public law. As we have previously put the point: When federal law is at issue and “the public interest is involved,” a federal court’s “equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946); see Virgin- ian R. Co. v. Railway Employees, 300 U.S. 515, 552 (1937) (“Courts of equity may, and frequently do, go much far­ ther” to give “relief in furtherance of the public interest than they are accustomed to go when only private inter­ ests are involved”).5 In exercising our jurisdiction, we may “mould each decree to the necessities of the particular case” and “accord full justice” to all parties. Porter, 328 U.S., at 398 (internal quotation marks omitted); see Ken- tucky v. Dennison, 65 U.S., at 98. These principles inform our consideration of the dispute before us. III We first address Nebraska’s breach of the Compact and Settlement and the remedies appropriate to that violation. Both parties assent to the Special Master’s finding that in —————— 5 The dissent objects that these precedents do not apply to “water disputes between States” because such clashes involve “sovereign rights.” See post, at 4–5. But in making that claim, the dissent ignores the effect of the Constitution: By insisting that Congress approve a compact like this one, the Constitution turns the agreement into a federal law like any other. See Cuyler v. Adams, 449 U.S. 433, 439– 440 (1981) (“By vesting in Congress the power to grant or withhold consent, . . . the Framers sought to ensure that Congress would main­ tain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority”). That constitutional choice means that the judicial authority we have recognized to give effect to, and remedy violations of, federal law fully attends a compact. 10 KANSAS v. NEBRASKA Opinion of the Court 2005–2006 Nebraska exceeded its allocation of water by 70,869 acre-feet—about 17% more than its proper share. See Report 88–89; App. B to Reply Brief for Kansas. They similarly agree that this overconsumption resulted in a $3.7 million loss to Kansas; and Nebraska has agreed to pay those damages. See Reply Brief for Kansas 9, 55; Brief for Nebraska 7. But the parties dispute whether Nebraska’s conduct warrants additional relief. The Mas­ ter determined that Nebraska “knowingly exposed Kansas to a substantial risk” of breach, and so “knowingly failed” to comply with the Compact. Report 130, 112; see supra, at 5. Based in part on that finding, he recommended disgorgement of $1.8 million, which he described as “a small portion of the amount by which Nebraska’s gain exceeds Kansas’s loss.” Report 179. But he declined to grant Kansas’s request for injunctive relief against Ne­ braska. See id., at 180–186. As noted previously, see supra, at 5–6, each party finds something to dislike in the Master’s handling of this issue: Nebraska contests his finding of a “knowing” Compact violation and his view that disgorgement is appropriate; Kansas wants a larger dis­ gorgement award and an injunction regulating Nebraska’s future conduct. We address those exceptions in turn. A 1 When they entered into the Settlement in 2002, the States understood that Nebraska would have to signifi­ cantly reduce its consumption of Republican River water. See Report 106. The Settlement, after all, charged Ne­ braska for its depletion of the Basin’s stream flow due to groundwater pumping—an amount the State had not previously counted toward its allotment. See supra, at 3. Nebraska did not have to achieve all that reduction in the next year: The Settlement’s adoption of multi-year averages to measure consumption allowed the State some time— Cite as: 574 U. S. ____ (2015) 11 Opinion of the Court how much depended on whether and when “water-short” conditions existed—to come into compliance. See Settle­ ment §§IV(D), V(B)(2)(e)(i), App. B; supra, at 4. As it turned out, the area experienced a drought in 2006; ac­ cordingly, Nebraska first needed to demonstrate compli­ ance in that year, based on the State’s average consump­ tion of water in 2005 and 2006.6 And at that initial compliance check, despite having enjoyed several years to prepare, Nebraska came up markedly short. Nebraska contends, contrary to the Master’s finding, that it could not have anticipated breaching the Compact in those years. By its account, the State took “persistent and earnest”—indeed, “extraordinary”—steps to comply with the agreement, including amending its water law to reduce groundwater pumping. Brief for Nebraska 9, 17. And Nebraska could not have foreseen (or so it claims) that those measures would prove inadequate. First, Ne­ braska avers, drought conditions between 2002 and 2006 reduced the State’s yearly allotments to historically low levels; the Master was thus “unfair to suggest Nebraska should have anticipated what never before was known.” Id., at 17. And second, Nebraska stresses, the RRCA determines each State’s use of water only retrospectively, calculating each spring what a State consumed the year before; hence, Nebraska “could not have known” that it was out of compliance in 2006 “until early 2007—when it was already too late.” Id., at 18; see supra, at 3. But that argument does not hold water: Rather, as the Special Master found, Nebraska failed to put in place adequate mechanisms for staying within its allotment in the face of a known substantial risk that it would other­ wise violate Kansas’s rights. See Report 105–112, 130. As an initial matter, the State’s efforts to reduce its use of —————— 6 Had rainfall been more plentiful, Nebraska would have had to show compliance in 2007, based on its average use from 2003 onward. 12 KANSAS v. NEBRASKA Opinion of the Court Republican River water came at a snail-like pace. The Nebraska Legislature waited a year and a half after sign­ ing the Settlement to amend the State’s water law. See §55, 2004 Neb. Laws p. 352, codified at Neb. Rev. Stat. 46– 715. And the fix the legislature adopted—the develop­ ment of regional water management plans meant to de­ crease groundwater pumping—did not go into effect for still another year. Nebraska thus wasted the time follow­ ing the Settlement—a crucial period to begin bringing down the State’s consumption. Indeed, the State’s overuse of Republican River water actually rose significantly from 2003 through 2005, making compliance at the eventual day of reckoning ever more difficult to achieve. See Report 108–109.7 And to make matters worse, Nebraska knew that decreasing pumping does not instantly boost stream flow: A time lag, of as much as a year, exists between the one and the other. See id., at 106. So Nebraska’s several- year delay in taking any corrective action foreseeably raised the risk that the State would breach the Compact. Still more important, what was too late was also too little. The water management plans finally adopted in 2005 called for only a 5% reduction in groundwater pump­ ing, although no evidence suggested that would suffice. The testimony presented to the Special Master gave not a hint that the state and local officials charged with formu­ lating those plans had conducted a serious appraisal of how much change would be necessary. See id., at 107– 108. And the State had created no way to enforce even the paltry goal the plans set. The Nebraska Legislature chose to leave operational control of water use in the hands of district boards consisting primarily of irrigators, who are —————— 7 Had 2006 not been a “water-short” year, all those overages would have gone into Nebraska’s 5-year average; as it was, the dry conditions triggered the alternative 2-year period, so the 2003 and 2004 overages dropped out of the RRCA’s calculations. Cite as: 574 U. S. ____ (2015) 13 Opinion of the Court among the immediate beneficiaries of pumping. No sanc­ tions or other mechanisms held those local bodies to ac­ count if they failed to meet the plans’ benchmark. They bore no legal responsibility for complying with the Com­ pact, and assumed no share of the penalties the State would pay for violations. See id., at 110–111. Given such a dearth of tools or incentives to achieve compliance, the wonder is only that Nebraska did not still further exceed its allotment. Nor do Nebraska’s excuses change our view of its mis­ behavior. True enough, the years following the Settlement were exceptionally arid. But the Compact and Settlement (unsurprisingly) contemplate wet and dry years alike. By contrast, Nebraska’s plans could have brought it into compliance only if the Basin had received a stretch of copious rainfall. See id., at 109–110. And Nebraska cannot take refuge in the timing of the RRCA’s calcula­ tions. By the time the compliance check of 2006 loomed, Nebraska knew that it had exceeded its allotment (by an ever greater margin) in each of the three previous years. As Nebraska’s own witnesses informed the Special Master, they “could clearly see” by the beginning of 2006 “that [the State] had not done enough” to come into compliance. Id., at 109 (quoting Tr. 1333 (Aug. 21, 2012)). Indeed, in that year, Nebraska began purchasing its farmers’ rights to surface water in order to mitigate its anticipated breach. But that last-minute effort, in the Master’s words, “fell woefully short”—as at that point could only have been expected. Report 109. From the outset of the Settlement through 2006, Nebraska headed—absent the luckiest of circumstances—straight toward a Compact violation. For these reasons, we agree with the Master’s conclu­ sion that Nebraska “knowingly exposed Kansas to a sub­ stantial risk” of receiving less water than the Compact provided, and so “knowingly failed” to comply with the obligations that agreement imposed. Id., at 130, 112. In 14 KANSAS v. NEBRASKA Opinion of the Court the early years of the Settlement, as the Master explained, Nebraska’s compliance efforts were not only inadequate, but also “reluctant,” showing a disinclination “to take [the] firm action” necessary “to meet the challenges of foresee- ably varying conditions in the Basin.” Id., at 105. Or said another way, Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its actions would deprive Kansas of the water to which it was entitled. See Tr. 1870 (Aug. 23, 2012) (Mas­ ter’s statement that Nebraska showed “reckless indiffer­ ence as to compliance back in ’05 and ’06”). 2 After determining that Kansas lost $3.7 million from Nebraska’s breach, the Special Master considered the case for an additional monetary award. Based on detailed evidence, not contested here, he concluded that an acre- foot of water is substantially more valuable on farmland in Nebraska than in Kansas. That meant Nebraska’s reward for breaching the Compact was “much larger than Kansas’ loss, likely by more than several multiples.” Report 178. Given the circumstances, the Master thought that Ne­ braska should have to disgorge part of that additional gain, to the tune of $1.8 million. In making that recom­ mendation, he relied on his finding—which we have just affirmed—of Nebraska’s culpability. See id., at 130. He also highlighted this Court’s broad remedial powers in compact litigation, noting that such cases involve not private parties’ private quarrels, but States’ clashes over federal law. See id., at 131, 135; supra, at 6–9. Nebraska (along with the dissent) opposes the Special Master’s disgorgement proposal on the ground that the State did not “deliberately act[ ]” to violate the Compact. Reply Brief for Nebraska 33; see post, at 6–7. Relying on private contract law, Nebraska cites a Restatement provi­ sion declaring that a court may award disgorgement in Cite as: 574 U. S. ____ (2015) 15 Opinion of the Court certain cases in which “a deliberate breach of contract results in profit to the defaulting promisor.” Restatement (Third) of Restitution and Unjust Enrichment §39(1) (2010) (Restatement); see Reply Brief for Nebraska 32. Nebraska then points out that the Master, even though finding a “knowing” exposure of Kansas to significant risk, rejected the idea that “Nebraska officials [had] deliber­ ately set out to violate the Compact.” Brief for Nebraska 16 (quoting Report 111). Accordingly, Nebraska concludes, no disgorgement is warranted. But that argument fails to come to terms with what the Master properly understood as the wrongful nature of Nebraska’s conduct. True enough, as the Master said, that Nebraska did not purposefully set out to breach the Compact. But still, as he also found, the State “knowingly exposed Kansas to a substantial risk” of breach, and blithely proceeded. Report 130. In some areas of the law and for certain purposes, the distinction between purpose­ fully invading and recklessly disregarding another’s rights makes no difference. See Bullock v. BankChampaign, N. A., 569 U. S. ___, ___ (2013) (slip op., at 6) (“We include as intentional . . . reckless conduct” of the kind that the law “often treats as the equivalent”); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193–194, n. 12 (1976) (“[R]ecklessness is [sometimes] considered to be a form of intentional conduct for purposes of imposing liability”). And indeed, the very Restatement Nebraska relies on treats the two similarly. It assimilates “deliberate[ness]” to “conscious wrongdoing,” which it defines as acting (as Nebraska did) “despite a known risk that the conduct . . . violates [another’s] rights.” Restatement §39, Comment f; id., §51(3). Conversely, the Restatement distinguishes “deliberate[ness]” from behavior (not akin to Nebraska’s) amounting to mere “inadvertence, negligence, or unsuc­ cessful attempt at performance.” Id., §39, Comment f. And whatever is true of a private contract action, the 16 KANSAS v. NEBRASKA Opinion of the Court case for disgorgement becomes still stronger when one State gambles with another State’s rights to a scarce natural resource. From the time this Court began to apportion interstate rivers, it has recognized part of its role as guarding against upstream States’ inequitable takings of water. And as we have noted, that concern persists even after States enter into a compact: This Court may then exercise remedial authority to ensure compli­ ance with the compact’s terms—thus preventing a geo­ graphically favored State from appropriating more than its share of a river. See supra, at 8. Indeed, the formation of such a compact provides this Court with enhanced remedial power because, as we have described, the agree­ ment is also an Act of Congress, and its breach a violation of federal law. See supra, at 8–9; Porter, 328 U.S. 395 (exercising equitable power to disgorge profits gained from violating a federal statute). Consistent with those princi­ ples, we have stated that awarding actual damages for a compact’s infringement may be inadequate, because that remedy alone “would permit [an upstream State] to ignore its obligation to deliver water as long as it is willing” to pay that amount. Texas v. New Mexico, 482 U.S., at 132. And as the Solicitor General noted in argument here, “[i]t is important that water flows down the river, not just money.” Tr. of Oral Arg. 24. Accordingly, this Court may order disgorgement of gains, if needed to stabilize a com­ pact and deter future breaches, when a State has demon­ strated reckless disregard of another, more vulnerable State’s rights under that instrument. Assessed in this light, a disgorgement order constitutes a “fair and equitable” remedy for Nebraska’s breach. Texas v. New Mexico, 482 U.S., at 134. “Possessing the privilege of being upstream,” Nebraska can (physically, though not legally) drain all the water it wants from the Republican River. Report 130. And the higher value of water on Nebraska’s farmland than on Kansas’s means Cite as: 574 U. S. ____ (2015) 17 Opinion of the Court that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual damages, and still come out ahead. That is nearly a recipe for breach—for an upstream State to refuse to deliver to its downstream neighbor the water to which the latter is entitled. And through 2006, Nebraska took full advantage of its favor­ able position, eschewing steps that would effectively control groundwater pumping and thus exceeding its allotment. In such circumstances, a disgorgement award appropri­ ately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful admin­ istration. See Porter, 328 U.S., at 400 (“Future compli­ ance may be more definitely assured if one is compelled to restore one’s illegal gains”).8 We thus reject Nebraska’s exception to the Master’s proposed remedy. B Kansas assails the Special Master’s recommended dis­ gorgement award from the other direction, claiming that it is too low to ensure Nebraska’s future compliance. See Brief for Kansas 55–59. Notably, Kansas does not insist on all of Nebraska’s gain. It recognizes the difficulty of ascertaining that figure, given the evidence the parties presented. See id., at 56; see also Report 177–178. And still more important, it “agrees” with the Master’s view that the Court should select a “fair point on th[e] spec­ trum” between no profits and full profits, based on the —————— 8 An award of specific performance may accomplish much the same objectives, as the dissent notes. See post, at 10–11. But for various reasons, a remedy in the form of water is not always feasible. See Texas v. New Mexico, 482 U.S. 124, 132 (1987). Here, both States concurred that using water as the remedial currency would lead to difficult questions about the proper timing and location of delivery. See Report 129–130. (That agreement is especially notable given the overall contentiousness of this litigation.) In such circumstances, the Master appropriately found another way of preventing knowing misbehavior. 18 KANSAS v. NEBRASKA Opinion of the Court totality of facts and interests in the case. Brief for Kansas 57 (quoting Report 135); see Sur-Reply Brief for Kansas 5. In setting that point, however, Kansas comes up with a higher number—or actually, a trio of them. The State first asks us to award “treble damages of $11.1 million,” then suggests that we can go “up to roughly $25 million,” and finally proposes a “1:1 loss-to-disgorgement ratio,” which means $3.7 million of Nebraska’s gains. Brief for Kansas 57; Sur-Reply Brief for Kansas 5, 7. We prefer to stick with the Master’s single number. As an initial matter, we agree with both the Master and Kansas that disgorgement need not be all or nothing. See, e.g., 1 D. Dobbs, Law of Remedies §2.4(1), p. 92 (2d ed. 1993) (“Balancing of equities and hardships may lead the court to grant some equitable relief but not” the full meas­ ure requested); Restatement §39, Comment i; id., §50, Comment a; National Security Systems, Inc. v. Iola, 700 F.3d 65, 80–81, 101–102 (CA3 2012). In exercising our original jurisdiction, this Court recognizes that “flexibility [is] inherent in equitable remedies,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 41) (quoting Hutto v. Finney, 437 U.S. 678, 687, n. 9 (1978)), and awards them “with reference to the facts of the particular case,” Texas v. New Mexico, 482 U.S., at 131 (quoting Haffner v. Dobrin- ski, 215 U.S. 446, 450 (1910)). So if partial disgorgement will serve to stabilize a compact by conveying an effective message to the breaching party that it must work hard to meet its future obligations, then the Court has discretion to order only that much. Cf. Kansas v. Colorado, 533 U.S. 1, 14 (2001) (concluding that a master “acted properly in carefully analyzing the facts of the case and in only award­ ing as much prejudgment interest as was required by a balancing of the equities”). And we agree with the Master’s judgment that a rela­ tively small disgorgement award suffices here. That is because, as the Master detailed, Nebraska altered its Cite as: 574 U. S. ____ (2015) 19 Opinion of the Court conduct after the 2006 breach, and has complied with the Compact ever since. See Report 112–118, 180. In 2007, Nebraska enacted new legislation establishing a mecha­ nism to accurately forecast the State’s annual allotment of Republican River water. §23, 2007 Neb. Laws p. 1600, codified at Neb. Rev. Stat. 46–715(6). Further, a new round of water management plans called for localities to reduce groundwater pumping by five times as much as the old (5%) target. And most important, those plans imple­ mented a system for the State, in dry years, to force dis­ tricts to curtail both surface water use and groundwater pumping. That “regulatory back-stop,” as Nebraska calls it, corrects the State’s original error of leaving all control of water use to unaccountable local actors. Report 113 (quoting Direct Testimony of Brian Dunnigan, Director, Nebraska Department of Resources ¶43 (July 25, 2012)); see supra, at 12–13. Testimony before the Master showed that if the scheme had been in effect between 2002 and 2006, Nebraska would have lived within its allocation throughout that period. See Report 117. The Master thus reasonably concluded that the current water management plans, if implemented in good faith, “will be effective to maintain compliance even in extraordinarily dry years.” See id., at 118. And so the Master had good cause to recommend the modest award he did, which serves as an ever-present reminder to Nebraska, but does not assume its continuing misconduct. Truth be told, we cannot be sure why the Master selected the exact number he did—why, that is, he arrived at $1.8 million, rather than a little more or a little less. The Master’s Report, in this single respect, contains less ex­ planation than we might like. But then again, any hard number reflecting a balance of equities can seem random in a certain light—as Kansas’s own briefs, with their ever- fluctuating ideas for a disgorgement award, amply attest. What matters is that the Master took into account the 20 KANSAS v. NEBRASKA Opinion of the Court appropriate considerations—weighing Nebraska’s incen­ tives, past behavior, and more recent compliance efforts— in determining the kind of signal necessary to prevent another breach. We are thus confident that in approving the Master’s recommendation for about half again Kan­ sas’s actual damages, we award a fair and equitable remedy suited to the circumstances. For related reasons, we also reject Kansas’s request for an injunction ordering Nebraska to comply with the Com­ pact and Settlement. Kansas wants such an order so that it can seek contempt sanctions against Nebraska for any future breach. See Brief for Kansas 36–44. But we agree with the Master that Kansas has failed to show, as it must to obtain an injunction, a “cognizable danger of recurrent violation.” United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953). As just discussed, Nebraska’s new compliance measures, so long as followed, are up to the task of keep­ ing the State within its allotment. And Nebraska is now on notice that if it relapses, it may again be subject to disgorgement of gains—either in part or in full, as the equities warrant. That, we trust, will adequately guard against Nebraska’s repeating its former practices. IV The final question before us concerns the Special Mas­ ter’s handling of Nebraska’s counterclaim. As we have noted, Nebraska contended that the Settlement’s Account­ ing Procedures inadvertently charge the State for using “imported water”—specifically, water from the Platte River—in conflict with the parties’ intent in both the Compact and the Settlement. See supra, at 4–5. The Master agreed, and recommended modifying the Proce­ dures by adopting an approach that the parties call the “5­ run formula,” to ensure that Nebraska’s consumption of Platte River water will not count toward its Compact allotment. Kansas now objects to that proposed remedy. Cite as: 574 U. S. ____ (2015) 21 Opinion of the Court The Compact, recall, apportions the virgin water supply of the Republican River and its tributaries—nothing less, but also nothing more. See Compact Art. III; supra, at 2. One complexity of that project arises from water’s . . . well, fluid quality. Nebraska imports water from the Platte River, outside the Republican River Basin and thus out­ side the Compact’s scope, to irrigate farmland. And that imported water simply will not stay still: Some of it seeps through the ground and raises stream flow in the Republi­ can River and its tributaries. See Second Report of Spe­ cial Master, O. T. 1999, No. 126, Orig., pp. 62–63 (Second Report). In negotiating the Settlement, the States under­ took—as part of their effort to accurately apportion the Basin’s water—to exclude all such imported water from their calculations. Reflecting the Compact’s own scope, §IV(F) of the Settlement states, in no uncertain terms, that “Beneficial Consumptive Use of Imported Water Supply shall not count as Computed Beneficial Consump­ tive Use” of Republican River Basin water. Which means, without all that distracting capitalization, that when Nebraska consumes imported water that has found its way into the Basin’s streams, that use shall not count toward its Compact allotment. But that edict of course requires calculating (in order to exclude) the State’s con­ sumption of imported water. The Settlement’s Accounting Procedures, in tandem with its Groundwater Model, are the tools the parties employ to make that computation. But as the Master found, the Procedures (and Model) founder in performing that task in dry conditions: They treat Nebraska’s use of imported water as if it were use of Basin water. That failure flows from the way the Proce­ dures measure a State’s consumption of water resulting from groundwater pumping. According to the Settlement, such pumping is to count against a State’s allotment only to the extent it reduces stream flow in specified areas— which it rarely does in a 1-to-1 ratio and sometimes does 22 KANSAS v. NEBRASKA Opinion of the Court not do at all. See id., §IV(C)(1); Report 19; n. 1, supra. Most notable here, pumping cannot deplete an already wholly dry stream—and in arid conditions, some of the Basin’s tributaries in fact run dry. As the Master put the point, stream flow in a given area “fall[s] as groundwater pumping increases until it hits zero, at which point it falls no more even as groundwater pumping continues.” Report 34. When that point arrives, Nebraska’s continued pump­ ing should not count as consumption of the Basin’s virgin water. But—and here lies the rub—imported water (from the Platte) can create stream flow in what would other­ wise be a dry riverbed. And the Accounting Procedures (and Model) fail to account for that possibility; accordingly, they see depletion of the Basin’s stream flow—the sole measure of the State’s consumption—where they should not. The result is to count imported water toward the State’s consumption of Basin water. In 2006, for example, the Procedures charged Nebraska with using 7,797 acre- feet of Platte River water, over 4% of the State’s allotment. By our estimate, just that single year’s miscalculation cost Nebraska over $1 million. See id., at 37, 176. The Master specifically determined, and our review of the relevant testimony confirms, that the parties did not know the Accounting Procedures would have that effect. See id., at 23–32. The States intended the Procedures (as per the Compact and Settlement) to count only consump­ tion of the Basin’s own water supply—and correlatively, to exclude use of water from the Platte. See id., at 23–25; see also Second Report 37, 64 (same conclusion reached by the Special Master approving the Settlement). There is no evidence that anyone seriously thought, much less dis­ cussed, that the Accounting Procedures might systemati­ cally err in accomplishing those computations. See Report 26–27.9 And because no one knew of the fault in the Pro­ —————— 9 Kansas argues otherwise, see Brief for Kansas 28–29, but the part of Cite as: 574 U. S. ____ (2015) 23 Opinion of the Court cedures, no one could possibly trade it off for other items during the parties’ negotiations. Thus, as the Master found, Nebraska did not receive anything, nor did Kansas give up anything, in exchange for the (unknown) error. See id., at 28–31. To the contrary, as all witnesses ex­ plained, the designers of the Procedures worked single­ mindedly to implement the Compact’s and Settlement’s strict demarcation between virgin and imported water— and assumed they had succeeded. See id., at 31–32. But even if all that is so, Kansas argues (along with the dissent) that a deal is a deal is a deal—and this deal did not include the 5-run formula the Master now proposes. See Brief for Kansas 31–34; post, at 15–19. On that view, the parties’ clear intent to exclude imported water does not matter; nor does their failure to appreciate that the Procedures, in opposition to that goal, would count such water in material amounts. According to Kansas, so long as the parties bargained (as they did) for the Procedures they got, that is the end of the matter: No one should now be heard to say that there is a better mode of accounting. See Tr. of Oral Arg. 54–55. That argument, however, does not pass muster. Of course, courts generally hold parties to the deals they make; and of course, courts should hesitate, and then hesitate some more, before modifying a contract, even to remove an inadvertent flaw. But in this Compact case, two special (and linked) considerations warrant reforming the Accounting Procedures as the Master has proposed— or better phrased, warrant conforming those Procedures to the parties’ underlying agreements. First, that remedy is —————— the record it cites further proves our point. There, Colorado’s expert testified that during development of the Groundwater Model—months after adoption of the Accounting Procedures—he “intellectually under­ stood” that the imported-water problem could occur, but “didn’t think that it would” and didn’t recall the issue ever coming up in discussions. Report 26 (quoting Tr. 676 (Aug. 13, 2012)); id., at 727–728. 24 KANSAS v. NEBRASKA Opinion of the Court necessary to prevent serious inaccuracies from distorting the States’ intended apportionment of interstate waters, as reflected in both the Compact and the Settlement. And second, it is required to avert an outright breach of the Compact—and so a violation of federal law. We address each point in turn. In resolving water disputes, this Court has opted to correct subsidiary technical agreements to promote accu­ racy in apportioning waters under a compact. In Texas v. New Mexico, for example, the parties entered into a com­ pact that based division of the Pecos River on certain conditions existing in 1947. The States further agreed that those conditions were described and defined in a particular engineering report. But that report turned out to contain material errors. Notwithstanding Texas’s objection that the parties had assented to its use, we set aside the flawed study and adopted a new technical docu­ ment that more accurately depicted the real-world condi­ tions of the compact’s specified baseline year. See 446 U.S. 540 (1980) (per curiam) (setting aside the old docu­ ment); 462 U.S., at 562–563 (describing the litigation); 467 U.S. 1238 (1984) (approving the new document); 482 U.S., at 127 (describing that approval). Similarly, in Kansas v. Colorado, 543 U.S. 86 (2004), we modified an agreement to ensure that it would correctly measure Colorado’s compliance with the Arkansas River Compact. The parties had consented to use a computer model on a year-by-year basis to gauge their consumption of water. See id., at 102 (“[B]oth [States] agreed to the use of annual measurement”). But after a time, a special master determined that annual accounting produced serious errors, whereas employing a 10-year measuring period accurately determined compact compliance. Over Kansas’s protest, we accordingly approved the Master’s alteration of the parties’ agreement to assess compliance each year. And in countering Kansas’s objection to the Cite as: 574 U. S. ____ (2015) 25 Opinion of the Court introduction of a 10-year measuring period, we posited that the compact’s drafters, albeit unaware of “complex computer modeling[,] . . . would have preferred accurate measurement.” Ibid.10 The teaching of those cases applies as well to this one: In each, this Court’s authority to devise “fair and equitable solutions” to interstate water disputes encompasses modi­ fying a technical agreement to correct material errors in the way it operates and thus align it with the compacting States’ intended apportionment. Texas v. New Mexico, 482 U.S., at 134; cf. Kansas v. Colorado, 543 U.S., at 102 (“After all, a ‘credit’ for surplus water that rests upon inaccurate measurement is not really a credit at all”). Much as in Texas v. New Mexico and Kansas v. Colorado, the subsidiary Accounting Procedures here failed to accu­ rately measure what they were supposed to. Modifying those Procedures does no more than make them consonant with the Compact and Settlement, ensuring that they help —————— 10 The dissent misunderstands the meaning and relevance of these decisions. It is of course true, as the dissent says, that in neither case did the Court reform a compact. See post, at 16–17. What the Court did do, contrary to the dissent’s protestations, was what we do here: modify an ancillary agreement to make sure it accurately implemented a compact’s apportionment. In Texas v. New Mexico, we interpreted a compact term, as the dissent says, see post, at 16; but we additionally threw out a technical report that the parties agreed would effectuate that term when it later proved erroneous. And similarly in Kansas v. Colorado, we altered an ancillary agreement to measure water usage year by year. The dissent contends that the States in that case had no such agreement, though acknowledging that they had one to calculate damages on an annual basis. See post, at 17. But the two were one and the same. Damages arise from violations, and violations occur when a State consumes too much water. In calling for year-by-year measure­ ment of damages, the agreement also called for year-by-year assess­ ment of consumption. And nothing supports the dissent’s claim that this agreement applied only retrospectively, rather than to assess both usage and damages on an ongoing basis. So to impose a 10-year meas­ uring period, consistent with accurate apportionment under the Com­ pact, we had to alter the agreement. 26 KANSAS v. NEBRASKA Opinion of the Court to realize, rather than frustrate, the agreed-upon division of water. Indeed, the case for modification is still stronger here, because (as we explain below) the Accounting Procedures as written affirmatively violate the Compact. That accord is the supreme law in this case: As the States explicitly recognized, they could not change the Compact’s terms even if they tried. See Settlement §I(D) (“[T]his Stipula­ tion and the Proposed Consent Judgment are not intended to, nor could they, change the States’ respective rights and obligations under the Compact”). That is a function of the Compact’s status as federal law, which binds the States unless and until Congress says otherwise. And Congress, of course, has not said otherwise here. To enter into a settlement contrary to the Compact is to violate a federal statute. See Vermont v. New York, 417 U.S. 270, 278 (1974) (per curiam). And as we have discussed, our equi­ table authority to grant remedies is at its apex when public rights and obligations are thus implicated. See Porter, 328 U.S., at 398; supra, at 8–9. The Accounting Procedures’ treatment of imported water first conflicts with the Compact by going beyond its boundaries—in essence, by regulating water ultra vires. According to its terms, the Compact pertains, and pertains only, to “virgin water supply originating in” the Republi­ can River Basin. Compact Art. III; see supra, at 2, 21. The agreement’s very first Article drives that point home: “The physical and other conditions peculiar to the Basin constitute the basis for this compact,” and nothing in it relates to any other waterway. To divide or otherwise regulate streams outside the Basin, the States would have to enter into a separate agreement and gain congressional approval. (The reason no one thought the Settlement needed such consent is precisely because it purported to stay within the Compact’s limits. See Settlement §I(D)) And yet, the Accounting Procedures have the effect of Cite as: 574 U. S. ____ (2015) 27 Opinion of the Court including such outside water within the Compact’s appor­ tionment scheme (by counting its use against a State’s allotment). The Procedures make water from the Platte subject to the Compact, in contravention of its scope; or conversely stated, they expand the Compact’s prescribed scope to cover water from the Platte. That is not within the States’ authority. What is more, the Procedures’ treatment of imported water deprives Nebraska of its rights under the Compact to the Basin’s own water supply. That is because the inescapable effect of charging Nebraska for the use of imported water, as the Procedures do, is to reduce the amount of Republican River water the State may con­ sume. Suppose the Compact grants 100 units of Republi­ can River water to Nebraska and Kansas alike; and fur­ ther assume that the Accounting Procedures count 10 units of Platte River water toward Nebraska’s allotment. That means Nebraska may now consume only 90 units of Republican River water (or else pay Kansas damages). The Procedures thus change the States’ shares of Basin water, to Nebraska’s detriment: Nebraska now has less, and Kansas relatively more, than the Compact allows. That, too, lies outside what the States can do. In light of all the above, we think the Master’s proposed solution the best one possible. The 5-run formula that he recommends conforms the Procedures to both the Compact and the Settlement by excluding imported water from the calculation of each State’s consumption. See Report 55– 56; id., at App. F. Kansas has not provided any workable alternative to align the Accounting Procedures with the Compact and Settlement. Nor has Kansas credibly shown that this simple change will introduce any other inaccu­ racy into Compact accounting. See id., at 58–68. The amendment will damage Kansas in no way other than by taking away something to which it is not entitled. In another case, with another history, we might prefer to 28 KANSAS v. NEBRASKA Opinion of the Court instruct the parties to figure out for themselves how to bring the Accounting Procedures into line with the Com­ pact. See New York v. New Jersey, 256 U.S. 296, 313 (1921) (noting that negotiation is usually the best way to solve interstate disputes). But we doubt that further discussion about this issue will prove productive. Arbitra­ tion has already failed to produce agreement about how to correct the Procedures. See supra, at 5. And before the Special Master, both parties indicated that further “dis­ pute resolution proceedings before the RRCA or an arbi­ trator” would be “futile.” Report 69 (quoting Case Man­ agement Order No. 9 ¶5 (Jan. 25, 2013)). We accordingly adopt the Master’s recommendation to amend the Ac­ counting Procedures so that they no longer charge Ne­ braska for imported water. V Nebraska argues here for a cramped view of our author­ ity to order disgorgement. Kansas argues for a similarly restrictive idea of our power to modify a technical docu­ ment. We think each has too narrow an understanding of this Court’s role in disputes arising from compacts appor­ tioning interstate streams. The Court has broad remedial authority in such cases to enforce the compact’s terms. Here, compelling Nebraska to disgorge profits deters it from taking advantage of its upstream position to appro­ priate more water than the Compact allows. And amend­ ing the Accounting Procedures ensures that the Compact’s provisions will govern the division of the Republican River Basin’s (and only that Basin’s) water supply. Both reme­ dies safeguard the Compact; both insist that States live within its law. Accordingly, we adopt all of the Special Master’s recommendations. It is so ordered. Cite as: 574 U. S. ____ (2015) 1 Opinion of ROBERTS, C. J. SUPREME COURT OF THE UNITED STATES _________________ No. 126, Orig. _________________ STATE OF KANSAS, PLAINTIFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTIONS TO REPORT OF SPECIAL MASTER [February 24, 2015] CHIEF JUSTICE ROBERTS, concurring in part and dissent- ing in part. I join Parts I and III of the Court’s opinion. I am in general agreement with the discussion in Part II, but I do not believe our equitable power, though sufficient to order a remedy of partial disgorgement, permits us to alter the Accounting Procedures to which the States agreed. I therefore join Part III of JUSTICE THOMAS’s opinion. Cite as: 574 U. S. ____ (2015) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 126, Orig. _________________ STATE OF KANSAS, PLAINTIFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTIONS TO REPORT OF SPECIAL MASTER [February 24, 2015] JUSTICE SCALIA, concurring in part and dissenting in part. I join JUSTICE THOMAS’s opinion. I write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (2010), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Sec- ond): Its Misleading Quality and a Proposal for Its Amelio- ration, 13 Pepp. L. Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTICE THOMAS notes, post, at 8 (opinion concurring in part and dissenting in part), it constitutes a “ ‘novel extension’ ” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, with- out further inquiry, that a Restatement provision de- scribes rather than revises current law. Cite as: 574 U. S. ____ (2015) Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 126, Orig. _________________ STATE OF KANSAS, PLAINTIFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTIONS TO REPORT OF SPECIAL MASTER [February 24, 2015] JUSTICE THOMAS, with whom JUSTICE SCALIA and JUSTICE ALITO join, and with whom THE CHIEF JUSTICE joins as to Part III, concurring in part and dissenting in part. Kansas, Nebraska, and Colorado have presented us with what is, in essence, a contract dispute. In exercising our original jurisdiction in this case, we have a responsibility to act in accordance with the rule of law and with appro­ priate consideration for the sovereign interests of the States before us. I agree with the Court’s conclusion that Nebraska knowingly, but not deliberately, breached the Republican River Compact, and I agree that there is no need to enter an injunction ordering Nebraska to comply with the Compact. But that is where my agreement ends. Applying ordinary principles of contract law to this dis­ pute, I would neither order disgorgement nor reform the States’ settlement agreement. This Court once understood that “the hardship of the case . . . is not sufficient to justify a court of equity to depart from all precedent and assume an unregulated power of administering abstract justice at the expense of well-settled principles.” Heine v. Levee Comm’rs, 19 Wall. 655, 658 (1874). Today, however, the majority disregards these limits. Invoking equitable powers, without equitable principles, the majority ignores the principles of contract law that we have traditionally applied to compact disputes 2 KANSAS v. NEBRASKA Opinion of THOMAS, J. between sovereign States. It authorizes an arbitrary award of disgorgement for breach of that contract. And, it invents a new theory of contract reformation to rewrite the agreed-upon terms of that contract. I respectfully dissent from these holdings. I A The States in this action disagree about their rights and responsibilities under the Republican River Compact and their 2002 Final Settlement Stipulation (Settlement), and have asked this Court to resolve what is, in essence, a contract dispute. “An interstate compact, though provided for in the Constitution, and ratified by Congress, is none­ theless essentially a contract between the signatory States.” Oklahoma v. New Mexico, 501 U.S. 221, 242 (1991) (Rehnquist, C. J., concurring in part and dissenting in part). Likewise, a legal settlement agreement is a contract. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381–382 (1994). The Court should therefore interpret the agreements at issue according to “the principles of contract law.” Tarrant Regional Water Dist. v. Herrmann, 569 U. S. ___, ___ (2013) (slip op., at 11). Under these principles, the Com­ pact and Settlement are “legal document[s] that must be construed and applied in accordance with [their] terms.” Texas v. New Mexico, 482 U.S. 124, 128 (1987) (Texas III); see also Kaktovik v. Watt, 689 F.2d 222, 230 (CADC 1982) (applying “familiar principles of contract law” to a settle­ ment agreement”). That command is even stronger in the context of inter­ state compacts, which must be approved by Congress under the Compact Clause of the Constitution. Art. I, §10, cl. 3; Alabama v. North Carolina, 560 U.S. 330, 351–352 (2010). Because these compacts are both contracts and federal law, we must be more careful to adhere to their Cite as: 574 U. S. ____ (2015) 3 Opinion of THOMAS, J. express terms, not less so. Ibid. If judges had the power to apply their own notions of fairness “to the implementa­ tion of federal statutes, [they] would be potent lawmakers indeed.” Id., at 352. Thus, to the extent that we have departed from contract law principles when adjudicating disputes over water compacts, it has been to reject loose equitable powers of the sort the majority now invokes. See, e.g., id., at 351–353 (rejecting an implied duty of good faith and fair dealing in interstate compacts). We have repeatedly said that “we will not order relief inconsistent with the express terms of a compact, no matter what the equities of the circumstances might otherwise invite.” Id., at 352 (internal quotation marks and alterations omitted). B Rather than apply “the principles of contract law,” Tarrant Regional Water Dist., supra, at ___ (slip op., at 11), the majority calls upon broad equitable power. Ante, at 6–9. It evidently draws this power from its “inherent authority” to apportion interstate streams in the absence of an interstate water compact. Ante, at 7. In the major­ ity’s view, States bargain for water rights “in the shadow of our equitable apportionment power,” and thus we “may invoke equitable principles” to “devise fair . . . solutions” to disputes between States about the bargains they struck. Ante, at 8 (internal quotation marks and alteration omitted). That conclusion gets things backwards: As we have explained, once a compact is formed, “courts have no power to substitute their own notions of an equitable apportionment for the apportionment chosen by Congress” and the States. Texas v. New Mexico, 462 U.S. 554, 568 (1983) (Texas II ) (internal quotation marks omitted). The majority next asserts “still greater” equitable power by equating contract disputes between sovereign States with cases involving federal law and the public interest. 4 KANSAS v. NEBRASKA Opinion of THOMAS, J. Ante, at 8–9. Although the majority recognizes that it “may not order relief inconsistent with a compact’s express terms,” it claims enlarged powers “within those limits.” Ante, at 9 (internal quotation marks and alterations omit­ ted). “When federal law is at issue and the public interest is involved,” the majority says, the Court’s equitable pow­ ers are “even broader and more flexible” than when it resolves a private-law dispute. Ibid. (internal quotation marks omitted). But the precedents on which the majority relies to jus- tify this power have nothing to do with water disputes between States. The majority cites Porter v. Warner Hold- ing Co., 328 U.S. 395 (1946), which involved a suit by the Administrator of the Office of Price Administration for an injunction against a landlord who had charged too much rent in violation of the Emergency Price Control Act of 1942. In that case, the Court recognized a public interest in the Administrator’s effort to “enforce compliance” with the Act, and “to give effect to its purposes.” Id., at 398, 400. The Court reasoned that, “since the public interest is involved in a proceeding of this nature, [a district court’s] equitable powers assume an even broader and more flexi­ ble character than when only a private controversy is at stake.” Id., at 398. The authority Porter cited for this point was Virginian R. Co. v. Railway Employees, 300 U.S. 515 (1937), a case on which the majority likewise relies. Ante, at 9. But that case, like Porter, did not in­ volve a state party or an interstate water dispute; instead, it concerned a dispute between private parties—a railroad and its employees’ union—arising under the Railway Labor Act. Virginian R. Co., supra, at 538. As in Porter, the Court recognized a public interest in the enforcement of a federal administrative scheme, explaining that Con­ gress had made a “declaration of public interest and policy which should be persuasive in inducing courts to give relief.” 300 U.S., at 552. Cite as: 574 U. S. ____ (2015) 5 Opinion of THOMAS, J. This case, by contrast, involves the inherent authority of sovereign States to regulate the use of water. The States’ “power to control navigation, fishing, and other public uses of water” is not a function of a federal regulatory program; it “is an essential attribute of [state] sovereignty.” Tar- rant Regional Water Dist., 569 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). Thus, when the Court resolves an interstate water dispute, it deals not with public policies created by federal statutes, but pre-existing sovereign rights, allocated according to the mutual agree­ ment of the parties with the consent of Congress. Al­ though the consent of Congress makes statutes of com­ pacts, our flexibility in overseeing a federal statute that pertains to the exercise of these sovereign powers is not the same as the flexibility Porter claimed for courts en­ gaged in supervising the administration of a federal regu­ latory program. Authority over water is a core attribute of state sovereignty, and “[f ]ederal courts should pause before using their inherent equitable powers to intrude into the proper sphere of the States.” Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (THOMAS, J., concurring). Moreover, even if the involvement of “public interests” might augment the Court’s equitable powers in the con­ text of disputes involving regulated parties and their regulators, it does not have the same effect in a dispute between States. States—unlike common carriers and landlords—“possess sovereignty concurrent with that of the Federal Government.” Gregory v. Ashcroft, 501 U.S. 452, 457 (1991) (internal quotation marks omitted). States thus come before this Court as sovereigns, seeking our assistance in resolving disputes “of such seriousness that it would [otherwise] amount to a casus belli.” Ne- braska v. Wyoming, 515 U.S. 1, 8 (1995) (internal quota­ tion marks omitted). The Federalist Papers emphasized that this Court’s role in resolving interstate disputes “[would] not change the principle” of state sovereignty, 6 KANSAS v. NEBRASKA Opinion of THOMAS, J. and they gave assurances that the Court would take “all the usual and most effectual precautions” necessary for impartial and principled adjudication. The Federalist No. 39, pp. 245–246 (C. Rossiter ed. 1961) (J. Madison). For that reason, when the parties before this Court are States, the Court should be more circumspect in its use of equitable remedies, not less. We have explained, for example, that “[w]e are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign States, to which the political branches consented.” Alabama, 560 U.S., at 352. The use of unbounded equitable power against States similarly threatens “to violate principles of state sovereignty and of the separation of powers,” Jenkins, 515 U.S., at 130 (THOMAS, J., concurring). In controversies among States, the Court should therefore “exercise the power to impose equitable remedies only sparingly, subject to clear rules guiding its use.” Id., at 131. II Applying ordinary contract principles, I would reject the Special Master’s recommendation to order disgorgement of Nebraska’s profits for breach of a compact. That remedy is not available for a nondeliberate breach of a contract. And even if it were, such an award must be based on Nebraska’s profits, not the arbitrary number the Master selected. A 1 Although our precedents have not foreclosed disgorge­ ment of profits as a remedy for breach of a water compact, they have suggested that disgorgement would be avail- able, if at all, only for the most culpable breaches: those that are “deliberate.” Texas III, 482 U.S., at 132. The Cite as: 574 U. S. ____ (2015) 7 Opinion of THOMAS, J. traditional remedy for breach of a water compact has been performance through delivery of water. See Kansas v. Colorado, 533 U.S. 1, 23 (2001) (O’Connor, J., concurring in part and dissenting in part). Although we deviated from that traditional remedy in Texas III, when we au­ thorized money damages, 482 U.S., at 132, the majority cites no case in which we have ever awarded disgorge­ ment. The lone reference to that remedy in our precedents is dictum in Texas III asserting that the money damages award in that case would not encourage efficient breaches of water compacts “in light of the authority to order . . . whatever additional sanction might be thought necessary for deliberate failure to perform . . . .” Ibid. The lack of support for disgorgement in our compact cases comports with the general law of remedies. The usual remedy for breach of a contract is damages based on the injured party’s “actual loss caused by the breach.” Restatement (Second) of Contracts §347, Comment e, p. 116 (1979). Disgorgement, by contrast, is an extraordi­ nary remedy that goes beyond a plaintiff ’s damages, requiring the breaching party to refund additional profits gained in the breach. See 3 D. Dobbs, Law of Remedies §12.7(3), pp. 166–167 (2d ed. 1993). In American law, disgorgement of profits is not generally an available rem- edy for breach of contract. Id., §12.7(4), at 171. Even if Texas III supported a narrow exception for cases involving deliberate breach of a water compact, that ex­ ception would not apply here. Although it is uncontested that Nebraska breached the Compact and that Kansas lost $3.7 million as a result, ante, at 9–10, the Master expressly found that there is no evidence that Nebraska deliber- ately breached the Compact. Report of Special Master 111, 130 (Report). In fact, Nebraska’s efforts “were ear­ nest and substantial enough to preclude a finding that this was a consciously opportunistic breach.” Id., at 131. And although the majority adopts the finding that Nebraska 8 KANSAS v. NEBRASKA Opinion of THOMAS, J. “knowingly failed” to comply with the Compact, ante, at 13 (internal quotation marks omitted), a finding that I do not dispute, neither the parties nor the majority disagrees with the Master’s conclusion that Nebraska did not inten­ tionally or deliberately breach the Compact, ante, at 10– 14. Under such circumstances, disgorgement is not an available remedy. 2 The Special Master nevertheless recommended dis­ gorgement because Nebraska “knowingly exposed Kansas to a substantial risk” of noncompliance. Report 130. He rested this recommendation on the Restatement (Third) of Restitution and Unjust Enrichment §39 (2010). See Re­ port 130–134. That section proposes awarding disgorge­ ment when a party’s profits from its breach are greater than the loss to the other party. The remedy is thought necessary because one party may “exploit the shortcom­ ings” of traditional damages remedies by breaching con­ tracts when its expected profits exceed the damages it would be required to pay to the other party. Restatement (Third) of Restitution §39, Comment b, at 649. In other words, the remedy “condemns a form of conscious advantage-taking” and seeks to thwart an “opportunistic calculation” that breaching is better than performing. Ibid. This Court, however, has never before relied on §39 nor adopted its proposed theory of disgorgement. And for good reason: It lacks support in the law. One reviewer of §39 has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 131, 134 (2008). And few courts have ever relied on §39. The sheer novelty of this proposed remedy counsels against applying it here. Cite as: 574 U. S. ____ (2015) 9 Opinion of THOMAS, J. In any event, §39 opines that disgorgement should be available only when a party deliberately breaches a con­ tract. This makes sense. If disgorgement is an antidote for “efficient breach,” then it need only be administered when “conscious advantage-taking” and “opportunistic calculation” are present. But as noted above, the Master expressly found that no deliberate breach occurred. Re­ port 130. The Master’s reliance on §39 was accordingly misplaced. 3 Perhaps recognizing the weakness in the Master’s rec­ ommendation, the majority takes a different approach, fashioning a new remedy of disgorgement for reckless breach. According to the majority, Nebraska’s conduct was essentially reckless, ante, at 14, and the Court may order disgorgement “when a State has demonstrated reckless disregard” for another State’s contractual rights, ante, at 16. As with the Restatement’s proposed theory, there is no basis for that proposition in our cases. Because disgorgement is available, if at all, only in cases of deliberate breach, the majority asserts that, “[i]n some areas of the law,” the line between intent and reckless disregard “makes no difference.” Ante, at 15. Accepting the truth of that proposition in some circumstances, the majority’s caveat acknowledges that it is not true in oth­ ers. Indeed, the law often places significant weight on the distinction between intentional and reckless conduct. See, e.g., Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998) (dis­ cussing “ ‘willful,’ ” “deliberate,” and “intentional” conduct, and distinguishing those terms from “reckless” conduct); see also Global-Tech Appliances, Inc. v. SEB S. A., 563 U. S. ___, ___–___ (2011) (slip op., at 13–14) (distinguish­ ing “willful blindness” from “recklessness”). The majority provides scant support for its conclusion that breach of an interstate water compact is an area in 10 KANSAS v. NEBRASKA Opinion of THOMAS, J. which the line between intent and recklessness is practi­ cally irrelevant. It first relies on Bullock v. BankCham- paign, N. A., 569 U. S. ___, ___ (2013) (slip op., at 1), in which the Court determined the mental state necessary for “ ‘defalcation while acting in a fiduciary capacity,’ ” as used in the Bankruptcy Code. Ante, at 15. In the absence of a fiduciary relationship, however, Bullock has little relevance. Cf. Harris Trust and Sav. Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 250 (2000) (noting the special disgorgement rules that apply “when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person”). The majority next relies on Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), which addressed “scienter” under §10(b) of the Securities Act of 1933. Ante, at 15 (citing 425 U.S., at 193–194, n. 12). The Court noted that it used the term “scienter” to mean “intent to deceive, manipulate, or defraud.” Id., at 194, n. 12. It then asserted—in dictum and without support—that recklessness is considered to be a form of intentional conduct in some areas of the law, but it declined to address whether reckless conduct could be sufficient for §10(b) liability. Ibid. That dictum is hardly sufficient grounds for claiming that recklessness and intent are equivalent mental states in compact disputes between States. If anything, the reverse is true. Disgorgement is strong medicine, and as with other forms of equitable power, we should impose it against the States “only sparingly.” Jenkins, 515 U.S., at 131 (THOMAS, J., concurring). The majority insists that the justification for disgorgement is enhanced “when one State gambles with another State’s rights to a scarce natural resource.” Ante, at 16. But the way this Court has always discouraged gambling with this scarce resource is to require delivery of water, not money. Prior to 1987, “we had never even suggested that mone­ tary damages could be recovered from a State as a remedy Cite as: 574 U. S. ____ (2015) 11 Opinion of THOMAS, J. for its violation of an interstate compact apportioning the flow of an interstate stream.” Kansas v. Colorado, 533 U.S., at 23 (O’Connor, J., concurring in part and dissent­ ing in part). If a State’s right to the “scarce natural re­ source” of water is the problem, then perhaps the Court ought to follow its usual practice of ordering specific per­ formance rather than improvising a new remedy of “reck­ less disgorgement.” B The majority compounds its errors by authorizing an arbitrary amount of disgorgement. As explained above, the measure of the disgorgement award should be the profits derived from a deliberate breach. Yet the Special Master acknowledged that its $1.8 million award was not based on any measure of Nebraska’s profits from breach­ ing the Compact. Report 179–180. The Master gave no dollar estimate of Nebraska’s profits and said only that its gain was “very much larger than Kansas’ loss” of $3.7 million, “likely by more than several multiples.” Id., at 178. Despite producing no estimate more precise than “very much larger,” the Master ordered a disgorgement award of $1.8 million. Id., at 178–179. The majority explains that “we cannot be sure why the Master selected the exact number he did.” Ante, at 19. Indeed. Neither the majority nor the Special Master nor I can identify a justifiable basis for this amount. It appears that $1.8 million just feels like not too much, but not too little. We should hold ourselves to a higher standard. In other contexts, we have demanded that district courts “provide proper justification” for a monetary award rather than divining an amount that appears to be “essentially arbi­ trary.” Perdue v. Kenny A., 559 U.S. 542, 557 (2010). We should do the same ourselves if we are going to award disgorgement here. As with ordinary damages, disgorge­ 12 KANSAS v. NEBRASKA Opinion of THOMAS, J. ment should not be awarded “beyond an amount that the evidence permits to be established with reasonable cer­ tainty.” Restatement (Second) of Contracts §352. And a disgorgement award ought to be calculated based on some­ thing more than the Special Master’s intuitions. The majority claims that the Master “took into account the appropriate considerations,” including “Nebraska’s incentives, past behavior, and more recent compliance efforts” in reaching the award. Ante, at 19. But it makes no difference that he took those factors into account if he arrived at a number that has no articulable relationship to Nebraska’s profits. Equitable disgorgement is not an arbitrary penalty designed to compel compliance, nor should it become one. What is more, the Master considered factors beyond those relevant to the calculation of a disgorgement award. In his view, $1.8 million “moves substantially towards turning the actual recovery by Kansas, net of reasonable transaction costs, into an amount that approximates a full recovery for the harm suffered.” Report 179. In other words, $1.8 million makes Kansas whole because it is a reasonable estimate of Kansas’ “transaction costs”—which presumably means the State’s attorney’s fees and litiga­ tion costs. But, under the “American Rule,” we generally do not award attorney’s fees “to a prevailing party absent explicit statutory authority.” Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 602 (2001) (internal quotation marks omitted). And neither the majority, nor Kansas, nor the Special Master offers any support for the proposi­ tion that a disgorgement award can smuggle in an award of attorney’s fees. If disgorgement were an appropriate remedy in this case, then the Court should require a calcu­ lation based on Nebraska’s profits rather than Kansas’ “transaction costs.” Cite as: 574 U. S. ____ (2015) 13 Opinion of THOMAS, J. III A I would also reject the Master’s recommendation to reform the Settlement because that recommendation conflicts with the equitable doctrine of reformation. The remedy of reformation is available to correct a contract if, “owing to mutual mistake, the language used therein did not fully or accurately express the agreement and inten­ tion of the parties.” Philippine Sugar Estates Development Co. v. Government of Philippine Islands, 247 U.S. 385, 389 (1918). The well-established rule is that, when a written contract “fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may at the request of a party reform the writing to express the agreement.” Restatement (Second) of Contracts §155, at 406. Reformation is thus available only when the parties reach an agreement but then “fail to express it correctly in the writing.” Id., Comment a, at 406. If “the parties make a written agreement that they would not otherwise have made because of a mistake other than one as to expres­ sion, the court will not reform a writing to reflect the agreement that it thinks they would have made.” Id., Comment b, at 408. Because modifying a written agree­ ment is an extraordinary step, a party seeking reformation must prove the existence of a mutual mistake of expres­ sion by “ ‘clear and convincing evidence.’ ” Id., Comment c, at 410. Nebraska cannot meet that burden because the States made no mistake in reducing their agreement to writing. Here are the terms the States agreed upon in their bind­ ing Settlement: “Beneficial Consumptive Use of Imported Water Sup­ ply shall not count as Computed Beneficial Consump­ tive Use or Virgin Water Supply. . . . Determinations 14 KANSAS v. NEBRASKA Opinion of THOMAS, J. of Beneficial Consumptive Use from Imported Water Supply (whether determined expressly or by implica­ tion) . . . shall be calculated in accordance with the [Republican River Compact Admin. (RRCA)] Account­ ing Procedures and by using the RRCA Groundwater Model.” Settlement §IV(F), p. 25. The States thus agreed not to count water imported from outside the Republican River Basin. But in the very same provision, they agreed to calculate the use of imported water using the RRCA Accounting Procedures and the RRCA Groundwater Model. The terms of the Settlement are thus crystal clear: The accounting procedures control determinations of consumptive use of imported water. And the parties do not contend that they made any draft­ ing mistake in recording the accounting procedures or the groundwater model. Instead, the parties’ mistake was their belief that the accounting procedures and water model they agreed upon would accurately exclude imported water from the calcula­ tion of Nebraska’s consumptive use. They were wrong about this. In fact, under dry weather conditions, when native water flows are depleted, the water model charges Nebraska for pumping imported water. Report 32–37. The parties did not realize the magnitude of this error. To the extent they thought about it at all, they realized the water model was not perfectly precise, but assumed that only very small, immaterial amounts of imported water would make their way into the calculations. See id., at 27. A key member of the modeling committee testified that he was “intellectually aware” of the imported-water issue, but that “we didn’t believe that that was going to be a big issue.” See Tr. 727 (testimony of Willem Schreüder). There is no testimony from any source suggesting that the parties agreed to a different water model. See Report 26–27. Nebraska thus cannot meet its burden to show by Cite as: 574 U. S. ____ (2015) 15 Opinion of THOMAS, J. clear and convincing evidence that the parties agreed to Nebraska’s “ ‘5-run formula,’ ” ante, at 20, but failed to express that agreement accurately in writing. If there is any mistake in this Settlement, it is not a mistake in writing, but in thinking. The parties knew what the methodology was and they expressly agreed to that methodology. They simply thought the methodology would work better than it did. See Tr. 727. Even though the methodology they agreed upon was imperfect, a writ­ ing may be reformed only to conform with the parties’ actual agreement, not to create a better one. The appropriate equitable remedy, if any, in these cir­ cumstances would be rescission, not reformation. In gen­ eral, if there is a mutual mistake “as to a basic assumption on which the contract was made,” the adversely affected party may seek to avoid the contract. Restatement (Sec­ ond) of Contracts §152, at 385; see also id., §155, Com­ ment b, Illustration 4, at 409 (noting that reformation is not available to remedy a mistake as to something other than reducing the agreement to writing). The States have not asked for rescission, of course, but it is incorrect to suggest, see ante, at 27, that there is no other solution to this problem. B Realizing that ordinary reformation is not available for Nebraska, the majority again summons its equitable power and renegotiates the accounting procedures to create what it considers a fairer agreement for the States. In doing so, it announces a new doctrine of reformation: In resolving water disputes, the Court will “correct subsidi­ ary technical agreements to promote accuracy in appor­ tion[ment].” Ante, at 24. From here on out, the Court will “modif[y] a technical agreement to correct material errors in the way it operates and thus align it with the compact­ ing States’ intended apportionment.” Ante, at 25. 16 KANSAS v. NEBRASKA Opinion of THOMAS, J. As this case illustrates, adopting this novel remedy is a mistake. The majority fails in its attempt to conform this new doctrine of “technical agreement correction” with both principles of equity and our precedent governing compact disputes. And after creating an unjustified doctrine, the majority misapplies it. 1 To begin, the majority’s reliance on equitable power is misplaced. That a court is exercising equitable power means only that it must look to established principles of equity. And reformation is the equitable doctrine that Nebraska seeks in this case. The Court should thus follow the rules of reformation, just as it would adhere to the contours of any other equitable doctrine. Indeed, we have demanded as much from lower courts when they exercise their power to grant other forms of equitable relief, such as a permanent injunction. See eBay Inc. v. Merc- Exchange, L. L. C., 547 U.S. 388, 392–394 (2006). If a court fails to apply the proper standard for a permanent injunction, it is no answer to recite the obvious fact that the court acted in equity. See id., at 394. Putting aside the assertion of equitable power, there is no support in our precedents for the majority’s doctrine of “technical agreement correction.” The majority first sug­ gests that this Court reformed a “technical document” in Texas v. New Mexico, 446 U.S. 540 (1980) (per curiam) (Texas I ). Ante, at 24. But there was no reformation at issue in that case—either of the compact or an ancillary technical agreement—only the interpretation of the words in the Pecos River Compact. Texas I, supra, at 540; see Report of Special Master on Obligation of New Mexico to Texas under the Pecos River Compact, O. T. 1975, No. 65, Orig., pp. 15–16, 34–37 (filed Oct. 15, 1979) (purporting to interpret the compact). The majority also claims that in Kansas v. Colorado, 543 Cite as: 574 U. S. ____ (2015) 17 Opinion of THOMAS, J. U. S. 86 (2004), we “approved the Master’s alteration of the parties’ agreement . . . .” Ante, at 24. But nothing in Kansas v. Colorado supports revising the express terms of a settlement agreement. In that case, the Court adopted a Special Master’s recommendation to calculate water usage based on a 10–year average rather than a single year. 543 U.S., at 99–100. There is no suggestion in the Court’s opinion (nor in the briefs filed in that case) that the States had previously agreed to use a 1-year method for calculat­ ing water usage or that anyone thought “reformation” of the compact or any ancillary agreement was needed. To the contrary, the Court explained that the compact simply did “not define the length of time over which” the States must make the relevant measurements. Id., at 100. There was thus nothing to rewrite, nothing to reform. The majority suggests that the States in that case had “ ‘agreed to the use of annual measurement’ ” for calculating future water usage, ante, at 24 (quoting Kansas v. Colorado, supra, at 102), but the quoted passage refers to the unre­ lated fact that the States had, earlier in the litigation, “agreed to the use of annual measurement for purposes of calculating past damages,” not future water usage, 543 U.S., at 102 (emphasis added). That litigation stipulation did not apply to the calculation of future water usage or future damages. Ibid. Even if the majority were correct that a damages calculation is simply the flip side of a water usage calculation, ante, at 25, n. 10, that conclusion plainly would apply only to calculation of past water us­ age. It is thus no surprise that the Court held that any pre-existing damages agreements did not govern the method of measuring future compliance. Kansas v. Colo- rado, supra, at 103. Given that the Court plainly did not apply any such agreements, it cannot be said to have altered them. 18 KANSAS v. NEBRASKA Opinion of THOMAS, J. 2 Having improperly invented the doctrine of “technical agreement correction,” the majority proceeds to misapply it. In “correcting” the accounting procedures, the majority purports to align them with the intent of the compacting parties. Ante, at 24–25. But we know that the majority’s reformed contract does not match the “States’ intended apportionment.” Ante, at 25. We know this because the Settlement expressly states that, for purposes of appor­ tioning the flow, imported water use would be calculated using the agreed-upon “Accounting Procedures” and the “Groundwater Model.” Settlement §IV(F), at 25. The States never intended to adopt the 5-run formula, and the Court has simply picked a winner and adopted Nebraska’s 5-run proposal, notwithstanding a binding agreement to the contrary. The majority also misapplies its “correction” remedy in claiming that its fix will prevent the existing accounting procedures from “affirmatively violat[ing] the Compact.” Ante, at 26. I cannot see how this is true. First, the exist­ ing procedures do not violate the Compact. We should favor an interpretation of the Compact that would render its performance possible, rather than “impossible or mean­ ingless.” 2 S. Williston, Law of Contracts §620, p. 1202 (1920). Read in light of this principle, the phrase “Virgin Water Supply” must be interpreted to allow for some imperfection in the groundwater models. After all, groundwater models are approximations of the physical world. Tr. 722–726. No accounting procedure can plausi­ bly track every drop of water through the 24,900 square mile Basin. Id., at 724. Second, even if the existing accounting procedures would violate the Compact because they allocate some imported water, the majority’s “correction” will not solve the problem. Because water models are always approxi­ mations, even the 5-run formula will be imprecise and will Cite as: 574 U. S. ____ (2015) 19 Opinion of THOMAS, J. therefore violate the Compact if it is read to require the States accurately to account for every drop of imported water. * * * Claiming to draw from a vast reservoir of equitable power, the Court ignores the limits of its role in resolving water-compact disputes between States. And in the name of protecting downstream States from their upstream neighbors, it diminishes the sovereign status of each of them. We owe the parties better. I would apply the same principles of contract law that we have previously applied to water disputes between States. Under those principles, I would sustain Nebraska’s and Colorado’s exceptions to the Master’s recommendation to order $1.8 million in disgorgement, and overrule Kansas’ exception to that recommendation. I would also sustain Kansas’ exception to the Master’s recommendation to reform the Settlement. I agree only with the Court’s decisions to overrule Ne­ braska’s exception to the Master’s finding that it know- ingly failed to comply with the Compact, and Kansas’ ex­ ception to the Master’s recommendation not to issue an injunction requiring Nebraska to comply with the Compact

For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States’ rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact’s terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief—both partial disgorgement of gains and an injunction—for Nebraska’s conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appen­ dix to the settlement, so that allocations of water will faithfully reflect the parties’ intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix. The Republican River originates in ; crosses the 2 KANSAS v. NEBRASKA Opinion of the Court northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributar­ ies, the river drains a 24,900-square-mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn. During the Dust Bowl of the 930’s, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. n response, the Federal Govern­ ment proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irriga­ tion projects to disperse the stored water. But the Gov­ ernment insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 943, as required under the Constitution, Art. cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 943, ch. 04, The Compact apportions among the three States the “virgin water supply originating in”—and, as we will later discuss, originating only in—the Republican River Basin. Compact Art. ; see infra, 0–2. “Virgin water sup­ ply,” as used in the Compact, means “the water supply within the Basin,” in both the River and its tributaries, “undepleted by the activities of man.” Compact Art. The Compact gives each State a set share of that supply— roughly, 49% to Nebraska, 40% to Kansas, and % to —for any “beneficial consumptive use.” Art. V; see Art. (defining that term to mean “that use by which the water supply of the Basin is consumed through the activities of man”). n addition, the Compact charges the chief water official of each State with respon­ sibility to jointly administer the agreement. See Art. X. Pursuant to that provision, the States created the Cite as: 574 U. S. (205) 3 Opinion of the Court Republican River Compact Administration (RRCA). The RRCA’s chief task is to calculate the Basin’s annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State’s use of that water has stayed within its allocation. All was smooth sailing for decades, until Kansas com­ plained to this Court about Nebraska’s increased pumping of groundwater, resulting from that State’s construction of “thousands of wells hydraulically connected to the Repub­ lican River and its tributaries.” Bill of Complaint, O. T. 997, No. 26, Orig., p. 5 (May 26, 9). Kansas con­ tended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State’s annual allotment of water. Nebraska maintained, to the con­ trary, that groundwater pumping fell outside the Com­ pact’s scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kan­ sas’s interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin’s stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement). The Settlement established detailed mechanisms to promote compliance with the Compact’s terms. The States —————— As we will later discuss, groundwater pumping does not diminish stream flow (and thus the Basin’s “virgin water supply”) at a -to- ratio. See Report of Special Master 9 (Report); infra, –22. n other words, a State can pump a bucketful of groundwater without reducing stream flow by the same amount. 4 KANSAS v. NEBRASKA Opinion of the Court agreed that the Settlement was not “intended to, nor could [it], change [their] respective rights and obligations under the Compact.” Settlement Rather, the agreement aimed to accurately measure the supply and use of the Basin’s water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctu­ ations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5-year running averages, reduced to 2-year averages in “water-short” periods. V(B). That change gave each State a chance to compensate for one (or more) year’s overuse with another (or more) year’s underuse before exceeding its allocation. The Settlement further provided, in line with this Court’s decision, that groundwater pumping would count as part of a State’s consumption to the extent it depleted the Basin’s stream flow. An appendix to the agreement called the “Accounting Procedures” described how a later- developed “Groundwater Model” (essentially, a mass of computer code) would perform those computations. App. C; App. J. And finally, the Settlement made clear, in accordance with the Compact, that a State’s use of “imported water”—that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River—would not count toward the State’s allocation, because it did not originate in the Basin. V(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption. But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005–2006 accounting period—the first for which the Settlement held States responsible—Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water— Cite as: 574 U. S. (205) 5 Opinion of the Court specifically, for water originating in the Platte River Ba­ sin. The States brought those disputes to the RRCA and then to non-binding arbitration, in accordance with the Settlement’s dispute resolution provisions. After failing to resolve the disagreements in those forums, Kansas sought redress in this Court, petitioning for both monetary and injunctive relief. We referred the case to a Special Master to consider Kansas’s claims. See 563 U. S. (20). n that proceeding, Nebraska asserted a counterclaim re­ questing a modification of the Accounting Procedures to ensure that its use of Platte River water would not count toward its Compact allocation. After two years of conducting hearings, receiving evi­ dence, and entertaining legal arguments, the Special Master issued his report and recommendations. The Master concluded that Nebraska had “knowingly failed” to comply with the Compact in the 2005–2006 accounting period, by consuming 70,69 acre-feet of water in excess of its prescribed share.2 Report 2. To remedy that breach, the Master proposed awarding Kansas $3.7 million for its loss, and another $. million in partial disgorgement of Nebraska’s still greater gains. The Master, however, thought that an injunction against Nebraska was not warranted. n addition, the Master recommended reform­ ing the Accounting Procedures in line with Nebraska’s request, to ensure that the State would not be charged with using Platte River water. Kansas and Nebraska each filed exceptions in this Court to parts of the Special Master’s report.3 Nebraska objects —————— 2 An acre-foot of water is pretty much what it sounds like. f you took an acre of land and covered it evenly with water one foot deep, you would have an acre-foot of water. 3 has also played a minor part in this dispute, and in this Court it filed a brief reiterating one of Nebraska’s exceptions. Because Kansas and Nebraska are the primary antagonists here, we will refer to that claim only as Nebraska’s. From here on in, drops off 6 KANSAS v. NEBRASKA Opinion of the Court to the Master’s finding of a “knowing” breach and his call for partial disgorgement of its gains. Kansas asserts that the Master should have recommended both a larger dis­ gorgement award and injunctive relief; the State also objects to his proposed change to the Accounting Proce­ dures. n reviewing those claims, this Court gives the Special Master’s factual findings “respect and a tacit presumption of correctness.” v. New 467 U.S. 30, 37 (4). But we conduct an “independent review of the record,” and assume “the ultimate responsi­ bility for deciding” all matters. Having carried out that careful review, we now overrule all exceptions and adopt the Master’s recommendations. The Constitution gives this Court original jurisdiction to hear suits between the States. See Art. Proceed­ ings under that grant of jurisdiction are “basically equi­ table in nature.” (973). When the Court exercises its original jurisdiction over a controversy between two States, it serves “as a substitute for the diplomatic settlement of controversies between sovereigns and a possible resort to force.” North That role significantly “differ[s] from” the one the Court under­ takes “in suits between private parties.” ; see Frankfurter & Landis, The Compact Clause of the Consti­ tution—A Study in nterstate Adjustments, 34 Yale L. J. 65, 705 (925) (When a “controversy concerns two States we are at once in a world wholly different from that of a law-suit between John Doe and Richard Roe over the metes and bounds of Blackacre”). n this singular sphere, “the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the —————— the map (so to speak). Cite as: 574 U. S. (205) 7 Opinion of the Court purposes of justice.” (6). Two particular features of this interstate controversy further distinguish it from a run-of-the-mill private suit and highlight the essentially equitable character of our charge. The first relates to the subject matter of the Com­ pact and Settlement: rights to an interstate waterway. The second concerns the Compact’s status as not just an agreement, but a federal law. Before proceeding to the merits of this dispute, we say a few words about each. This Court has recognized for more than a century its inherent authority, as part of the Constitution’s grant of original jurisdiction, to equitably apportion interstate streams between States. n 5 U.S. 25, 45 (902), we confronted a simple consequence of geography: An upstream State can appropriate all water from a river, thus “wholly depriv[ing]” a downstream State “of the benefit of water” that “by nature” would flow into its territory. n such a circumstance, the downstream State lacks the sovereign’s usual power to respond—the capacity to “make war[,] grant letters of marque and reprisal,” or even enter into agreements without the con­ sent of Congress. (internal quotation marks omitted). “Bound hand and foot by the prohibitions of the Constitution, a resort to the judicial power is the only means left” for stopping an inequitable taking of water. (quoting Rhode sland v. Massachusetts, 2 Pet. 657, 726 (3)). This Court’s authority to apportion interstate streams encourages States to enter into compacts with each other. When the division of water is not “left to the pleasure” of the upstream State, but States instead “know[ ] that some tribunal can decide on the right,” then “controversies will [probably] be settled by compact.” 5 U.S., And that, of course, is what happened here: Kansas and Nebraska negotiated a compact to divide KANSAS v. NEBRASKA Opinion of the Court the waters of the Republican River and its tributaries. Our role thus shifts: t is now to declare rights under the Compact and enforce its terms. See (3). But in doing so, we remain aware that the States bar­ gained for those rights in the shadow of our equitable apportionment power—that is, our capacity to prevent one State from taking advantage of another. Each State’s “right to invoke the original jurisdiction of this Court [is] an important part of the context” in which any compact is made. And it is “difficult to conceive” that a downstream State “would trade away its right” to our equitable apportionment if, under such an agreement, an upstream State could avoid its obligations or otherwise continue overreaching. Accordingly, our enforce­ ment authority includes the ability to provide the reme­ dies necessary to prevent abuse. We may invoke equitable principles, so long as consistent with the compact itself, to devise “fair solution[s]” to the state-parties’ disputes and provide effective relief for their violations. Texas v. New (7) (supplying an “ad­ ditional enforcement mechanism” to ensure an upstream State’s compliance with a compact).4 And that remedial authority gains still greater force because the Compact, having received Congress’s blessing, counts as federal law. See 43 () (“[C]ongressional consent transforms an inter­ state compact into a law of the United States”). Of course, that legal status underscores a limit on our en­ forcement power: We may not “order relief inconsistent with [a compact’s] express terms.” —————— 4 JUSTCE THOMAS misdescribes this aspect of our decision. See post, 5 (opinion concurring in part and dissenting in part) (hereinafter the dissent). Far from claiming the power to alter a compact to fit our own views of fairness, we insist only upon broad remedial authority to enforce the Compact’s terms and deter future violations. Cite as: 574 U. S. (205) 9 Opinion of the Court But within those limits, the Court may exercise its full authority to remedy violations of and promote compliance with the agreement, so as to give complete effect to public law. As we have previously put the point: When federal law is at issue and “the public interest is involved,” a federal court’s “equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.” v. Warner Holding 3 ; see Virgin- ian R. (“Courts of equity may, and frequently do, go much far­ ther” to give “relief in furtherance of the public interest than they are accustomed to go when only private inter­ ests are involved”).5 n exercising our jurisdiction, we may “mould each decree to the necessities of the particular case” and “accord full justice” to all parties. 32 U.S., (internal quotation marks omitted); see Ken- tucky v. 65 U.S., at These principles inform our consideration of the dispute before us. We first address Nebraska’s breach of the Compact and Settlement and the remedies appropriate to that violation. Both parties assent to the Special Master’s finding that in —————— 5 The dissent objects that these precedents do not apply to “water disputes between States” because such clashes involve “sovereign rights.” See post, –5. But in making that claim, the dissent ignores the effect of the Constitution: By insisting that Congress approve a compact like this one, the Constitution turns the agreement into a federal law like any other. See 439– 440 () (“By vesting in Congress the power to grant or withhold consent, the Framers sought to ensure that Congress would main­ tain ultimate supervisory power over cooperative state action that might otherwise interfere with the full and free exercise of federal authority”). That constitutional choice means that the judicial authority we have recognized to give effect to, and remedy violations of, federal law fully attends a compact. 0 KANSAS v. NEBRASKA Opinion of the Court 2005–2006 Nebraska exceeded its allocation of water by 70,69 acre-feet—about 7% more than its proper share. See Report –9; App. B to Reply Brief for Kansas. They similarly agree that this overconsumption resulted in a $3.7 million loss to Kansas; and Nebraska has agreed to pay those See Reply Brief for Kansas 9, 55; Brief for Nebraska 7. But the parties dispute whether Nebraska’s conduct warrants additional relief. The Mas­ ter determined that Nebraska “knowingly exposed Kansas to a substantial risk” of breach, and so “knowingly failed” to comply with the Compact. Report 30, 2; see Based in part on that finding, he recommended disgorgement of $. million, which he described as “a small portion of the amount by which Nebraska’s gain exceeds Kansas’s loss.” Report 79. But he declined to grant Kansas’s request for injunctive relief against Ne­ braska. See 0–6. As noted previously, see –6, each party finds something to dislike in the Master’s handling of this issue: Nebraska contests his finding of a “knowing” Compact violation and his view that disgorgement is appropriate; Kansas wants a larger dis­ gorgement award and an injunction regulating Nebraska’s future conduct. We address those exceptions in turn. A When they entered into the Settlement in 2002, the States understood that Nebraska would have to signifi­ cantly reduce its consumption of Republican River water. See Report 06. The Settlement, after all, charged Ne­ braska for its depletion of the Basin’s stream flow due to groundwater pumping—an amount the State had not previously counted toward its allotment. See Nebraska did not have to achieve all that reduction in the next year: The Settlement’s adoption of multi-year averages to measure consumption allowed the State some time— Cite as: 574 U. S. (205) Opinion of the Court how much depended on whether and when “water-short” conditions existed—to come into compliance. See Settle­ ment V(B)(2)(e)(i), App. B; As it turned out, the area experienced a drought in 2006; ac­ cordingly, Nebraska first needed to demonstrate compli­ ance in that year, based on the State’s average consump­ tion of water in 2005 and 2006.6 And at that initial compliance check, despite having enjoyed several years to prepare, Nebraska came up markedly short. Nebraska contends, contrary to the Master’s finding, that it could not have anticipated breaching the Compact in those years. By its account, the State took “persistent and earnest”—indeed, “extraordinary”—steps to comply with the agreement, including amending its water law to reduce groundwater pumping. Brief for Nebraska 9, 7. And Nebraska could not have foreseen (or so it claims) that those measures would prove inadequate. First, Ne­ braska avers, drought conditions between 2002 and 2006 reduced the State’s yearly allotments to historically low levels; the Master was thus “unfair to suggest Nebraska should have anticipated what never before was known.” And second, Nebraska stresses, the RRCA determines each State’s use of water only retrospectively, calculating each spring what a State consumed the year before; hence, Nebraska “could not have known” that it was out of compliance in 2006 “until early 2007—when it was already too late.” ; see But that argument does not hold water: Rather, as the Special Master found, Nebraska failed to put in place adequate mechanisms for staying within its allotment in the face of a known substantial risk that it would other­ wise violate Kansas’s rights. See Report 05–2, 30. As an initial matter, the State’s efforts to reduce its use of —————— 6 Had rainfall been more plentiful, Nebraska would have had to show compliance in 2007, based on its average use from 2003 onward. 2 KANSAS v. NEBRASKA Opinion of the Court Republican River water came at a snail-like pace. The Nebraska Legislature waited a year and a half after sign­ ing the Settlement to amend the State’s water law. See 2004 Neb. Laws p. 352, codified at Neb. Rev. Stat. 46– 75. And the fix the legislature adopted—the develop­ ment of regional water management plans meant to de­ crease groundwater pumping—did not go into effect for still another year. Nebraska thus wasted the time follow­ ing the Settlement—a crucial period to begin bringing down the State’s consumption. ndeed, the State’s overuse of Republican River water actually rose significantly from 2003 through 2005, making compliance at the eventual day of reckoning ever more difficult to achieve. See Report 0–09.7 And to make matters worse, Nebraska knew that decreasing pumping does not instantly boost stream flow: A time lag, of as much as a year, exists between the one and the other. See So Nebraska’s several- year delay in taking any corrective action foreseeably raised the risk that the State would breach the Compact. Still more important, what was too late was also too little. The water management plans finally adopted in 2005 called for only a 5% reduction in groundwater pump­ ing, although no evidence suggested that would suffice. The testimony presented to the Special Master gave not a hint that the state and local officials charged with formu­ lating those plans had conducted a serious appraisal of how much change would be necessary. See at 07– 0. And the State had created no way to enforce even the paltry goal the plans set. The Nebraska Legislature chose to leave operational control of water use in the hands of district boards consisting primarily of irrigators, who are —————— 7 Had 2006 not been a “water-short” year, all those overages would have gone into Nebraska’s 5-year average; as it was, the dry conditions triggered the alternative 2-year period, so the 2003 and 2004 overages dropped out of the RRCA’s calculations. Cite as: 574 U. S. (205) 3 Opinion of the Court among the immediate beneficiaries of pumping. No sanc­ tions or other mechanisms held those local bodies to ac­ count if they failed to meet the plans’ benchmark. They bore no legal responsibility for complying with the Com­ pact, and assumed no share of the penalties the State would pay for violations. See at 0–. Given such a dearth of tools or incentives to achieve compliance, the wonder is only that Nebraska did not still further exceed its allotment. Nor do Nebraska’s excuses change our view of its mis­ behavior. True enough, the years following the Settlement were exceptionally arid. But the Compact and Settlement (unsurprisingly) contemplate wet and dry years alike. By contrast, Nebraska’s plans could have brought it into compliance only if the Basin had received a stretch of copious rainfall. See at 09–0. And Nebraska cannot take refuge in the timing of the RRCA’s calcula­ tions. By the time the compliance check of 2006 loomed, Nebraska knew that it had exceeded its allotment (by an ever greater margin) in each of the three previous years. As Nebraska’s own witnesses informed the Special Master, they “could clearly see” by the beginning of 2006 “that [the State] had not done enough” to come into compliance. at 09 (quoting Tr. 333 (Aug. 2, 202)). ndeed, in that year, Nebraska began purchasing its farmers’ rights to surface water in order to mitigate its anticipated breach. But that last-minute effort, in the Master’s words, “fell woefully short”—as at that point could only have been expected. Report 09. From the outset of the Settlement through 2006, Nebraska headed—absent the luckiest of circumstances—straight toward a Compact violation. For these reasons, we agree with the Master’s conclu­ sion that Nebraska “knowingly exposed Kansas to a sub­ stantial risk” of receiving less water than the Compact provided, and so “knowingly failed” to comply with the obligations that agreement imposed. n 4 KANSAS v. NEBRASKA Opinion of the Court the early years of the Settlement, as the Master explained, Nebraska’s compliance efforts were not only inadequate, but also “reluctant,” showing a disinclination “to take [the] firm action” necessary “to meet the challenges of foresee- ably varying conditions in the Basin.” Or said another way, Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its actions would deprive Kansas of the water to which it was entitled. See Tr. 70 (Aug. 202) (Mas­ ter’s statement that Nebraska showed “reckless indiffer­ ence as to compliance back in ’05 and ’06”). 2 After determining that Kansas lost $3.7 million from Nebraska’s breach, the Special Master considered the case for an additional monetary award. Based on detailed evidence, not contested here, he concluded that an acre- foot of water is substantially more valuable on farmland in Nebraska than in Kansas. That meant Nebraska’s reward for breaching the Compact was “much larger than Kansas’ loss, likely by more than several multiples.” Report 7. Given the circumstances, the Master thought that Ne­ braska should have to disgorge part of that additional gain, to the tune of $. million. n making that recom­ mendation, he relied on his finding—which we have just affirmed—of Nebraska’s culpability. See He also highlighted this Court’s broad remedial powers in compact litigation, noting that such cases involve not private parties’ private quarrels, but States’ clashes over federal law. See ; at 6–9. Nebraska (along with the dissent) opposes the Special Master’s disgorgement proposal on the ground that the State did not “deliberately act[ ]” to violate the Compact. Reply Brief for Nebraska 33; see post, at 6–7. Relying on private contract law, Nebraska cites a Restatement provi­ sion declaring that a court may award disgorgement in Cite as: 574 U. S. (205) 5 Opinion of the Court certain cases in which “a deliberate breach of contract results in profit to the defaulting promisor.” Restatement (Third) of Restitution and Unjust Enrichment (200) (Restatement); see Reply Brief for Nebraska 32. Nebraska then points out that the Master, even though finding a “knowing” exposure of Kansas to significant risk, rejected the idea that “Nebraska officials [had] deliber­ ately set out to violate the Compact.” Brief for Nebraska 6 (quoting Report ). Accordingly, Nebraska concludes, no disgorgement is warranted. But that argument fails to come to terms with what the Master properly understood as the wrongful nature of Nebraska’s conduct. True enough, as the Master said, that Nebraska did not purposefully set out to breach the Compact. But still, as he also found, the State “knowingly exposed Kansas to a substantial risk” of breach, and blithely proceeded. Report 30. n some areas of the law and for certain purposes, the distinction between purpose­ fully invading and recklessly disregarding another’s rights makes no difference. See Bullock v. BankChampaign, N. A., 569 U. S. (203) (slip op., at 6) (“We include as intentional reckless conduct” of the kind that the law “often treats as the equivalent”); Ernst & Ernst v. Hochfelder, (“[R]ecklessness is [sometimes] considered to be a form of intentional conduct for purposes of imposing liability”). And indeed, the very Restatement Nebraska relies on treats the two similarly. t assimilates “deliberate[ness]” to “conscious wrongdoing,” which it defines as acting (as Nebraska did) “despite a known risk that the conduct violates [another’s] rights.” Restatement Comment f; Conversely, the Restatement distinguishes “deliberate[ness]” from behavior (not akin to Nebraska’s) amounting to mere “inadvertence, negligence, or unsuc­ cessful attempt at performance.” Comment f. And whatever is true of a private contract action, the 6 KANSAS v. NEBRASKA Opinion of the Court case for disgorgement becomes still stronger when one State gambles with another State’s rights to a scarce natural resource. From the time this Court began to apportion interstate rivers, it has recognized part of its role as guarding against upstream States’ inequitable takings of water. And as we have noted, that concern persists even after States enter into a compact: This Court may then exercise remedial authority to ensure compli­ ance with the compact’s terms—thus preventing a geo­ graphically favored State from appropriating more than its share of a river. See ndeed, the formation of such a compact provides this Court with enhanced remedial power because, as we have described, the agree­ ment is also an Act of Congress, and its breach a violation of federal law. See –9; (exercising equitable power to disgorge profits gained from violating a federal statute). Consistent with those princi­ ples, we have stated that awarding actual for a compact’s infringement may be inadequate, because that remedy alone “would permit [an upstream State] to ignore its obligation to deliver water as long as it is willing” to pay that amount. Texas v. New And as the Solicitor General noted in argument here, “[i]t is important that water flows down the river, not just money.” Tr. of Oral Arg. 24. Accordingly, this Court may order disgorgement of gains, if needed to stabilize a com­ pact and deter future breaches, when a State has demon­ strated reckless disregard of another, more vulnerable State’s rights under that instrument. Assessed in this light, a disgorgement order constitutes a “fair and equitable” remedy for Nebraska’s breach. Texas v. New 42 U.S., at “Possessing the privilege of being upstream,” Nebraska can (physically, though not legally) drain all the water it wants from the Republican River. Report 30. And the higher value of water on Nebraska’s farmland than on Kansas’s means Cite as: 574 U. S. (205) 7 Opinion of the Court that Nebraska can take water that under the Compact should go to Kansas, pay Kansas actual and still come out ahead. That is nearly a recipe for breach—for an upstream State to refuse to deliver to its downstream neighbor the water to which the latter is entitled. And through 2006, Nebraska took full advantage of its favor­ able position, eschewing steps that would effectively control groundwater pumping and thus exceeding its allotment. n such circumstances, a disgorgement award appropri­ ately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful admin­ istration. See 32 U.S., 00 (“Future compli­ ance may be more definitely assured if one is compelled to restore one’s illegal gains”). We thus reject Nebraska’s exception to the Master’s proposed remedy. B Kansas assails the Special Master’s recommended dis­ gorgement award from the other direction, claiming that it is too low to ensure Nebraska’s future compliance. See Brief for Kansas 55–59. Notably, Kansas does not insist on all of Nebraska’s gain. t recognizes the difficulty of ascertaining that figure, given the evidence the parties presented. See ; see also Report 77–7. And still more important, it “agrees” with the Master’s view that the Court should select a “fair point on th[e] spec­ trum” between no profits and full profits, based on the —————— An award of specific performance may accomplish much the same objectives, as the dissent notes. See post, at 0–. But for various reasons, a remedy in the form of water is not always feasible. See Texas v. New (7). Here, both States concurred that using water as the remedial currency would lead to difficult questions about the proper timing and location of delivery. See Report 29–30. (That agreement is especially notable given the overall contentiousness of this litigation.) n such circumstances, the Master appropriately found another way of preventing knowing misbehavior. KANSAS v. NEBRASKA Opinion of the Court totality of facts and interests in the case. Brief for Kansas 57 (quoting Report 35); see Sur-Reply Brief for Kansas 5. n setting that point, however, Kansas comes up with a higher number—or actually, a trio of them. The State first asks us to award “treble of $. million,” then suggests that we can go “up to roughly $25 million,” and finally proposes a “: loss-to-disgorgement ratio,” which means $3.7 million of Nebraska’s gains. Brief for Kansas 57; Sur-Reply Brief for Kansas 5, 7. We prefer to stick with the Master’s single number. As an initial matter, we agree with both the Master and Kansas that disgorgement need not be all or nothing. See, e.g., D. Dobbs, Law of Remedies 4(), p. 92 (2d ed. 993) (“Balancing of equities and hardships may lead the court to grant some equitable relief but not” the full meas­ ure requested); Restatement Comment i; Comment a; National Security Systems, nc. v. ola, 700 F.3d 65, 0–, 0–02 (CA3 202). n exercising our original jurisdiction, this Court recognizes that “flexibility [is] inherent in equitable remedies,” Brown v. Plata, 563 U. S. (20) (slip op., ) ), and awards them “with reference to the facts of the particular case,” Texas v. New ). So if partial disgorgement will serve to stabilize a compact by conveying an effective message to the breaching party that it must work hard to meet its future obligations, then the Court has discretion to order only that much. Cf. 533 U.S. 4 (200) (concluding that a master “acted properly in carefully analyzing the facts of the case and in only award­ ing as much prejudgment interest as was required by a balancing of the equities”). And we agree with the Master’s judgment that a rela­ tively small disgorgement award suffices here. That is because, as the Master detailed, Nebraska altered its Cite as: 574 U. S. (205) 9 Opinion of the Court conduct after the 2006 breach, and has complied with the Compact ever since. See Report 2–, 0. n 2007, Nebraska enacted new legislation establishing a mecha­ nism to accurately forecast the State’s annual allotment of Republican River water. 2007 Neb. Laws p. 600, codified at Neb. Rev. Stat. 46–75(6). Further, a new round of water management plans called for localities to reduce groundwater pumping by five times as much as the old (5%) target. And most important, those plans imple­ mented a system for the State, in dry years, to force dis­ tricts to curtail both surface water use and groundwater pumping. That “regulatory back-stop,” as Nebraska calls it, corrects the State’s original error of leaving all control of water use to unaccountable local actors. Report 3 (quoting Direct Testimony of Brian Dunnigan, Director, Nebraska Department of Resources ¶43 (July 25, 202)); see at 2–3. Testimony before the Master showed that if the scheme had been in effect between 2002 and 2006, Nebraska would have lived within its allocation throughout that period. See Report 7. The Master thus reasonably concluded that the current water management plans, if implemented in good faith, “will be effective to maintain compliance even in extraordinarily dry years.” See And so the Master had good cause to recommend the modest award he did, which serves as an ever-present reminder to Nebraska, but does not assume its continuing misconduct. Truth be told, we cannot be sure why the Master selected the exact number he did—why, that is, he arrived at $. million, rather than a little more or a little less. The Master’s Report, in this single respect, contains less ex­ planation than we might like. But then again, any hard number reflecting a balance of equities can seem random in a certain light—as Kansas’s own briefs, with their ever- fluctuating ideas for a disgorgement award, amply attest. What matters is that the Master took into account the 20 KANSAS v. NEBRASKA Opinion of the Court appropriate considerations—weighing Nebraska’s incen­ tives, past behavior, and more recent compliance efforts— in determining the kind of signal necessary to prevent another breach. We are thus confident that in approving the Master’s recommendation for about half again Kan­ sas’s actual we award a fair and equitable remedy suited to the circumstances. For related reasons, we also reject Kansas’s request for an injunction ordering Nebraska to comply with the Com­ pact and Settlement. Kansas wants such an order so that it can seek contempt sanctions against Nebraska for any future breach. See Brief for Kansas 36–44. But we agree with the Master that Kansas has failed to show, as it must to obtain an injunction, a “cognizable danger of recurrent violation.” United 633 (953). As just discussed, Nebraska’s new compliance measures, so long as followed, are up to the task of keep­ ing the State within its allotment. And Nebraska is now on notice that if it relapses, it may again be subject to disgorgement of gains—either in part or in full, as the equities warrant. That, we trust, will adequately guard against Nebraska’s repeating its former practices. V The final question before us concerns the Special Mas­ ter’s handling of Nebraska’s counterclaim. As we have noted, Nebraska contended that the Settlement’s Account­ ing Procedures inadvertently charge the State for using “imported water”—specifically, water from the Platte River—in conflict with the parties’ intent in both the Compact and the Settlement. See –5. The Master agreed, and recommended modifying the Proce­ dures by adopting an approach that the parties call the “5­ run formula,” to ensure that Nebraska’s consumption of Platte River water will not count toward its Compact allotment. Kansas now objects to that proposed remedy. Cite as: 574 U. S. (205) 2 Opinion of the Court The Compact, recall, apportions the virgin water supply of the Republican River and its tributaries—nothing less, but also nothing more. See Compact Art. ; One complexity of that project arises from water’s well, fluid quality. Nebraska imports water from the Platte River, outside the Republican River Basin and thus out­ side the Compact’s scope, to irrigate farmland. And that imported water simply will not stay still: Some of it seeps through the ground and raises stream flow in the Republi­ can River and its tributaries. See Second Report of Spe­ cial Master, O. T. 999, No. 26, Orig., pp. 62–63 (Second Report). n negotiating the Settlement, the States under­ took—as part of their effort to accurately apportion the Basin’s water—to exclude all such imported water from their calculations. Reflecting the Compact’s own scope, of the Settlement states, in no uncertain terms, that “Beneficial Consumptive Use of mported Water Supply shall not count as Computed Beneficial Consump­ tive Use” of Republican River Basin water. Which means, without all that distracting capitalization, that when Nebraska consumes imported water that has found its way into the Basin’s streams, that use shall not count toward its Compact allotment. But that edict of course requires calculating (in order to exclude) the State’s con­ sumption of imported water. The Settlement’s Accounting Procedures, in tandem with its Groundwater Model, are the tools the parties employ to make that computation. But as the Master found, the Procedures (and Model) founder in performing that task in dry conditions: They treat Nebraska’s use of imported water as if it were use of Basin water. That failure flows from the way the Proce­ dures measure a State’s consumption of water resulting from groundwater pumping. According to the Settlement, such pumping is to count against a State’s allotment only to the extent it reduces stream flow in specified areas— which it rarely does in a -to- ratio and sometimes does 22 KANSAS v. NEBRASKA Opinion of the Court not do at all. See Report 9; n. Most notable here, pumping cannot deplete an already wholly dry stream—and in arid conditions, some of the Basin’s tributaries in fact run dry. As the Master put the point, stream flow in a given area “fall[s] as groundwater pumping increases until it hits zero, at which point it falls no more even as groundwater pumping continues.” Report 34. When that point arrives, Nebraska’s continued pump­ ing should not count as consumption of the Basin’s virgin water. But—and here lies the rub—imported water (from the Platte) can create stream flow in what would other­ wise be a dry riverbed. And the Accounting Procedures (and Model) fail to account for that possibility; accordingly, they see depletion of the Basin’s stream flow—the sole measure of the State’s consumption—where they should not. The result is to count imported water toward the State’s consumption of Basin water. n 2006, for example, the Procedures charged Nebraska with using 7,797 acre- feet of Platte River water, over 4% of the State’s allotment. By our estimate, just that single year’s miscalculation cost Nebraska over $ million. See 7, 76. The Master specifically determined, and our review of the relevant testimony confirms, that the parties did not know the Accounting Procedures would have that effect. See 3–32. The States intended the Procedures (as per the Compact and Settlement) to count only consump­ tion of the Basin’s own water supply—and correlatively, to exclude use of water from the Platte. See 3–25; see also Second Report 37, 64 (same conclusion reached by the Special Master approving the Settlement). There is no evidence that anyone seriously thought, much less dis­ cussed, that the Accounting Procedures might systemati­ cally err in accomplishing those computations. See Report 26–27.9 And because no one knew of the fault in the Pro­ —————— 9 Kansas argues otherwise, see Brief for Kansas 2–29, but the part of Cite as: 574 U. S. (205) Opinion of the Court cedures, no one could possibly trade it off for other items during the parties’ negotiations. Thus, as the Master found, Nebraska did not receive anything, nor did Kansas give up anything, in exchange for the (unknown) error. See –3. To the contrary, as all witnesses ex­ plained, the designers of the Procedures worked single­ mindedly to implement the Compact’s and Settlement’s strict demarcation between virgin and imported water— and assumed they had succeeded. See –32. But even if all that is so, Kansas argues (along with the dissent) that a deal is a deal is a deal—and this deal did not include the 5-run formula the Master now proposes. See Brief for Kansas 3–34; post, –9. On that view, the parties’ clear intent to exclude imported water does not matter; nor does their failure to appreciate that the Procedures, in opposition to that goal, would count such water in material amounts. According to Kansas, so long as the parties bargained (as they did) for the Procedures they got, that is the end of the matter: No one should now be heard to say that there is a better mode of accounting. See Tr. of Oral Arg. 54–55. That argument, however, does not pass muster. Of course, courts generally hold parties to the deals they make; and of course, courts should hesitate, and then hesitate some more, before modifying a contract, even to remove an inadvertent flaw. But in this Compact case, two special (and linked) considerations warrant reforming the Accounting Procedures as the Master has proposed— or better phrased, warrant conforming those Procedures to the parties’ underlying agreements. First, that remedy is —————— the record it cites further proves our point. There, ’s expert testified that during development of the Groundwater Model—months after adoption of the Accounting Procedures—he “intellectually under­ stood” that the imported-water problem could occur, but “didn’t think that it would” and didn’t recall the issue ever coming up in discussions. Report 26 (quoting Tr. 676 (Aug. 3, 202)); at 727–72. 24 KANSAS v. NEBRASKA Opinion of the Court necessary to prevent serious inaccuracies from distorting the States’ intended apportionment of interstate waters, as reflected in both the Compact and the Settlement. And second, it is required to avert an outright breach of the Compact—and so a violation of federal law. We address each point in turn. n resolving water disputes, this Court has opted to correct subsidiary technical agreements to promote accu­ racy in apportioning waters under a compact. n Texas v. New for example, the parties entered into a com­ pact that based division of the Pecos River on certain conditions existing in 947. The States further agreed that those conditions were described and defined in a particular engineering report. But that report turned out to contain material errors. Notwithstanding Texas’s objection that the parties had assented to its use, we set aside the flawed study and adopted a new technical docu­ ment that more accurately depicted the real-world condi­ tions of the compact’s specified baseline year. See 446 U.S. 540 (0) (setting aside the old docu­ ment); 462 U.S., 2–563 (describing the litigation); 467 U.S. (4) ; 42 U.S., (describing that approval). Similarly, in we modified an agreement to ensure that it would correctly measure ’s compliance with the Arkansas River Compact. The parties had consented to use a computer model on a year-by-year basis to gauge their consumption of water. See at 02 (“[B]oth [States] agreed to the use of annual measurement”). But after a time, a special master determined that annual accounting produced serious errors, whereas employing a 0-year measuring period accurately determined compact compliance. Over Kansas’s protest, we accordingly approved the Master’s alteration of the parties’ agreement to assess compliance each year. And in countering Kansas’s objection to the Cite as: 574 U. S. (205) 25 Opinion of the Court introduction of a 0-year measuring period, we posited that the compact’s drafters, albeit unaware of “complex computer modeling[,] would have preferred accurate measurement.” 0 The teaching of those cases applies as well to this one: n each, this Court’s authority to devise “fair and equitable solutions” to interstate water disputes encompasses modi­ fying a technical agreement to correct material errors in the way it operates and thus align it with the compacting States’ intended apportionment. Texas v. New 42 U.S., at ; cf. 543 U.S., at 02 (“After all, a ‘credit’ for surplus water that rests upon inaccurate measurement is not really a credit at all”). Much as in Texas v. New and the subsidiary Accounting Procedures here failed to accu­ rately measure what they were supposed to. Modifying those Procedures does no more than make them consonant with the Compact and Settlement, ensuring that they help —————— 0 The dissent misunderstands the meaning and relevance of these decisions. t is of course true, as the dissent says, that in neither case did the Court reform a compact. See post, at 6–7. What the Court did do, contrary to the dissent’s protestations, was what we do here: modify an ancillary agreement to make sure it accurately implemented a compact’s apportionment. n Texas v. New we interpreted a compact term, as the dissent says, see post, at 6; but we additionally threw out a technical report that the parties agreed would effectuate that term when it later proved erroneous. And similarly in Kansas v. we altered an ancillary agreement to measure water usage year by year. The dissent contends that the States in that case had no such agreement, though acknowledging that they had one to calculate on an annual basis. See post, But the two were one and the same. Damages arise from violations, and violations occur when a State consumes too much water. n calling for year-by-year measure­ ment of the agreement also called for year-by-year assess­ ment of consumption. And nothing supports the dissent’s claim that this agreement applied only retrospectively, rather than to assess both usage and on an ongoing basis. So to impose a 0-year meas­ uring period, consistent with accurate apportionment under the Com­ pact, we had to alter the agreement. 26 KANSAS v. NEBRASKA Opinion of the Court to realize, rather than frustrate, the agreed-upon division of water. ndeed, the case for modification is still stronger here, because (as we explain below) the Accounting Procedures as written affirmatively violate the Compact. That accord is the supreme law in this case: As the States explicitly recognized, they could not change the Compact’s terms even if they tried. See Settlement (“[T]his Stipula­ tion and the Proposed Consent Judgment are not intended to, nor could they, change the States’ respective rights and obligations under the Compact”). That is a function of the Compact’s status as federal law, which binds the States unless and until Congress says otherwise. And Congress, of course, has not said otherwise here. To enter into a settlement contrary to the Compact is to violate a federal statute. See 47 U.S. 270, (974) And as we have discussed, our equi­ table authority to grant remedies is at its apex when public rights and obligations are thus implicated. See 32 U.S., ; –9. The Accounting Procedures’ treatment of imported water first conflicts with the Compact by going beyond its boundaries—in essence, by regulating water ultra vires. According to its terms, the Compact pertains, and pertains only, to “virgin water supply originating in” the Republi­ can River Basin. Compact Art. ; see 2. The agreement’s very first Article drives that point home: “The physical and other conditions peculiar to the Basin constitute the basis for this compact,” and nothing in it relates to any other waterway. To divide or otherwise regulate streams outside the Basin, the States would have to enter into a separate agreement and gain congressional approval. (The reason no one thought the Settlement needed such consent is precisely because it purported to stay within the Compact’s limits. See Settlement ) And yet, the Accounting Procedures have the effect of Cite as: 574 U. S. (205) 27 Opinion of the Court including such outside water within the Compact’s appor­ tionment scheme (by counting its use against a State’s allotment). The Procedures make water from the Platte subject to the Compact, in contravention of its scope; or conversely stated, they expand the Compact’s prescribed scope to cover water from the Platte. That is not within the States’ authority. What is more, the Procedures’ treatment of imported water deprives Nebraska of its rights under the Compact to the Basin’s own water supply. That is because the inescapable effect of charging Nebraska for the use of imported water, as the Procedures do, is to reduce the amount of Republican River water the State may con­ sume. Suppose the Compact grants 00 units of Republi­ can River water to Nebraska and Kansas alike; and fur­ ther assume that the Accounting Procedures count 0 units of Platte River water toward Nebraska’s allotment. That means Nebraska may now consume only 90 units of Republican River water (or else pay Kansas ). The Procedures thus change the States’ shares of Basin water, to Nebraska’s detriment: Nebraska now has less, and Kansas relatively more, than the Compact allows. That, too, lies outside what the States can do. n light of all the above, we think the Master’s proposed solution the best one possible. The 5-run formula that he recommends conforms the Procedures to both the Compact and the Settlement by excluding imported water from the calculation of each State’s consumption. See Report 55– 56; at App. F. Kansas has not provided any workable alternative to align the Accounting Procedures with the Compact and Settlement. Nor has Kansas credibly shown that this simple change will introduce any other inaccu­ racy into Compact accounting. See –6. The amendment will damage Kansas in no way other than by taking away something to which it is not entitled. n another case, with another history, we might prefer to 2 KANSAS v. NEBRASKA Opinion of the Court instruct the parties to figure out for themselves how to bring the Accounting Procedures into line with the Com­ pact. See New 33 (92) (noting that negotiation is usually the best way to solve interstate disputes). But we doubt that further discussion about this issue will prove productive. Arbitra­ tion has already failed to produce agreement about how to correct the Procedures. See And before the Special Master, both parties indicated that further “dis­ pute resolution proceedings before the RRCA or an arbi­ trator” would be “futile.” Report 69 (quoting Case Man­ agement Order No. 9 ¶5 (Jan. 25, 203)). We accordingly adopt the Master’s recommendation to amend the Ac­ counting Procedures so that they no longer charge Ne­ braska for imported water. V Nebraska argues here for a cramped view of our author­ ity to order disgorgement. Kansas argues for a similarly restrictive idea of our power to modify a technical docu­ ment. We think each has too narrow an understanding of this Court’s role in disputes arising from compacts appor­ tioning interstate streams. The Court has broad remedial authority in such cases to enforce the compact’s terms. Here, compelling Nebraska to disgorge profits deters it from taking advantage of its upstream position to appro­ priate more water than the Compact allows. And amend­ ing the Accounting Procedures ensures that the Compact’s provisions will govern the division of the Republican River Basin’s (and only that Basin’s) water supply. Both reme­ dies safeguard the Compact; both insist that States live within its law. Accordingly, we adopt all of the Special Master’s recommendations. t is so ordered. Cite as: 574 U. S. (205) Opinion of ROBERTS, C. J. SUPREME COURT OF THE UNTED STATES No. 26, Orig. STATE OF KANSAS, PLANTFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTONS TO REPORT OF SPECAL MASTER [February 24, 205] CHEF JUSTCE ROBERTS, concurring in part and dissent- ing in part. join Parts and of the Court’s opinion. am in general agreement with the discussion in Part but do not believe our equitable power, though sufficient to order a remedy of partial disgorgement, permits us to alter the Accounting Procedures to which the States agreed. therefore join Part of JUSTCE THOMAS’s opinion. Cite as: 574 U. S. (205) Opinion of SCALA, J. SUPREME COURT OF THE UNTED STATES No. 26, Orig. STATE OF KANSAS, PLANTFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTONS TO REPORT OF SPECAL MASTER [February 24, 205] JUSTCE SCALA, concurring in part and dissenting in part. join JUSTCE THOMAS’s opinion. write separately to note that modern Restatements—such as the Restatement (Third) of Restitution and Unjust Enrichment (200), which both opinions address in their discussions of the disgorgement remedy—are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, ntroduction, p. viii (934). Over time, the Restatements’ authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Sec- ond): ts Misleading Quality and a Proposal for ts Amelio- ration, 3 Pepp. L. Rev. 24–25 (5). Section 39 of the Third Restatement of Restitution and Unjust Enrich- ment is illustrative; as JUSTCE THOMAS notes, post, (opinion concurring in part and dissenting in part), it constitutes a “ ‘novel extension’ ” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, with- out further inquiry, that a Restatement provision de- scribes rather than revises current law. Cite as: 574 U. S. (205) Opinion of THOMAS, J. SUPREME COURT OF THE UNTED STATES No. 26, Orig. STATE OF KANSAS, PLANTFF v. STATES OF NEBRASKA AND COLORADO ON EXCEPTONS TO REPORT OF SPECAL MASTER [February 24, 205] JUSTCE THOMAS, with whom JUSTCE SCALA and JUSTCE ALTO join, and with whom THE CHEF JUSTCE joins as to Part concurring in part and dissenting in part. Kansas, Nebraska, and have presented us with what is, in essence, a contract dispute. n exercising our original jurisdiction in this case, we have a responsibility to act in accordance with the rule of law and with appro­ priate consideration for the sovereign interests of the States before us. agree with the Court’s conclusion that Nebraska knowingly, but not deliberately, breached the Republican River Compact, and agree that there is no need to enter an injunction ordering Nebraska to comply with the Compact. But that is where my agreement ends. Applying ordinary principles of contract law to this dis­ pute, would neither order disgorgement nor reform the States’ settlement agreement. This Court once understood that “the hardship of the case is not sufficient to justify a court of equity to depart from all precedent and assume an unregulated power of administering abstract justice at the expense of well-settled principles.” Heine v. Levee Comm’rs, 9 Wall. 655, 65 (74). Today, however, the majority disregards these limits. nvoking equitable powers, without equitable principles, the majority ignores the principles of contract law that we have traditionally applied to compact disputes 2 KANSAS v. NEBRASKA Opinion of THOMAS, J. between sovereign States. t authorizes an arbitrary award of disgorgement for breach of that contract. And, it invents a new theory of contract reformation to rewrite the agreed-upon terms of that contract. respectfully dissent from these holdings. A The States in this action disagree about their rights and responsibilities under the Republican River Compact and their 2002 Final Settlement Stipulation (Settlement), and have asked this Court to resolve what is, in essence, a contract dispute. “An interstate compact, though provided for in the Constitution, and ratified by Congress, is none­ theless essentially a contract between the signatory States.” Oklahoma v. New 50 U.S. 22, (99) (Rehnquist, C. J., concurring in part and dissenting in part). Likewise, a legal settlement agreement is a contract. 5 U.S. 375, 3–32 (994). The Court should therefore interpret the agreements at issue according to “the principles of contract law.” Tarrant Regional Water v. Herrmann, 569 U. S. (203) (slip op., at ). Under these principles, the Com­ pact and Settlement are “legal document[s] that must be construed and applied in accordance with [their] terms.” Texas v. New 2 (7) ; see also (CADC 2) (applying “familiar principles of contract law” to a settle­ ment agreement”). That command is even stronger in the context of inter­ state compacts, which must be approved by Congress under the Compact Clause of the Constitution. Art. cl. 3; 35–352 (200). Because these compacts are both contracts and federal law, we must be more careful to adhere to their Cite as: 574 U. S. (205) 3 Opinion of THOMAS, J. express terms, not less so. f judges had the power to apply their own notions of fairness “to the implementa­ tion of federal statutes, [they] would be potent lawmakers indeed.” 52. Thus, to the extent that we have departed from contract law principles when adjudicating disputes over water compacts, it has been to reject loose equitable powers of the sort the majority now invokes. See, e.g., 5–353 (rejecting an implied duty of good faith and fair dealing in interstate compacts). We have repeatedly said that “we will not order relief inconsistent with the express terms of a compact, no matter what the equities of the circumstances might otherwise invite.” 52 (internal quotation marks and alterations omitted). B Rather than apply “the principles of contract law,” Tarrant Regional Water at (slip op., at ), the majority calls upon broad equitable power. Ante, at 6–9. t evidently draws this power from its “inherent authority” to apportion interstate streams in the absence of an interstate water compact. Ante, at 7. n the major­ ity’s view, States bargain for water rights “in the shadow of our equitable apportionment power,” and thus we “may invoke equitable principles” to “devise fair solutions” to disputes between States about the bargains they struck. Ante, (internal quotation marks and alteration omitted). That conclusion gets things backwards: As we have explained, once a compact is formed, “courts have no power to substitute their own notions of an equitable apportionment for the apportionment chosen by Congress” and the States. Texas v. New (3) (Texas ) (internal quotation marks omitted). The majority next asserts “still greater” equitable power by equating contract disputes between sovereign States with cases involving federal law and the public interest. 4 KANSAS v. NEBRASKA Opinion of THOMAS, J. Ante, –9. Although the majority recognizes that it “may not order relief inconsistent with a compact’s express terms,” it claims enlarged powers “within those limits.” Ante, at 9 (internal quotation marks and alterations omit­ ted). “When federal law is at issue and the public interest is involved,” the majority says, the Court’s equitable pow­ ers are “even broader and more flexible” than when it resolves a private-law dispute. (internal quotation marks omitted). But the precedents on which the majority relies to jus- tify this power have nothing to do with water disputes between States. The majority cites v. Warner Hold- ing which involved a suit by the Administrator of the Office of Price Administration for an injunction against a landlord who had charged too much rent in violation of the Emergency Price Control Act of 942. n that case, the Court recognized a public interest in the Administrator’s effort to “enforce compliance” with the Act, and “to give effect to its purposes.” 400. The Court reasoned that, “since the public interest is involved in a proceeding of this nature, [a district court’s] equitable powers assume an even broader and more flexi­ ble character than when only a private controversy is at stake.” The authority cited for this point was Virginian R. 300 U.S. 55 a case on which the majority likewise relies. Ante, at 9. But that case, like did not in­ volve a state party or an interstate water dispute; instead, it concerned a dispute between private parties—a railroad and its employees’ union—arising under the Railway Labor Act. Virginian R. 3. As in the Court recognized a public interest in the enforcement of a federal administrative scheme, explaining that Con­ gress had made a “declaration of public interest and policy which should be persuasive in inducing courts to give relief.” 300 U.S., at Cite as: 574 U. S. (205) 5 Opinion of THOMAS, J. This case, by contrast, involves the inherent authority of sovereign States to regulate the use of water. The States’ “power to control navigation, fishing, and other public uses of water” is not a function of a federal regulatory program; it “is an essential attribute of [state] sovereignty.” Tar- rant Regional Water 569 U. S., at (slip op., ) (internal quotation marks omitted). Thus, when the Court resolves an interstate water dispute, it deals not with public policies created by federal statutes, but pre-existing sovereign rights, allocated according to the mutual agree­ ment of the parties with the consent of Congress. Al­ though the consent of Congress makes statutes of com­ pacts, our flexibility in overseeing a federal statute that pertains to the exercise of these sovereign powers is not the same as the flexibility claimed for courts en­ gaged in supervising the administration of a federal regu­ latory program. Authority over water is a core attribute of state sovereignty, and “[f ]ederal courts should pause before using their inherent equitable powers to intrude into the proper sphere of the States.” 55 U.S. 70, 3 (995) Moreover, even if the involvement of “public interests” might augment the Court’s equitable powers in the con­ text of disputes involving regulated parties and their regulators, it does not have the same effect in a dispute between States. States—unlike common carriers and landlords—“possess sovereignty concurrent with that of the Federal Government.” Gregory v. Ashcroft, 50 U.S. 452, 457 (99) (internal quotation marks omitted). States thus come before this Court as sovereigns, seeking our assistance in resolving disputes “of such seriousness that it would [otherwise] amount to a casus belli.” Ne- 55 U.S. (995) (internal quota­ tion marks omitted). The Federalist Papers emphasized that this Court’s role in resolving interstate disputes “[would] not change the principle” of state sovereignty, 6 KANSAS v. NEBRASKA Opinion of THOMAS, J. and they gave assurances that the Court would take “all the usual and most effectual precautions” necessary for impartial and principled adjudication. The Federalist No. 39, pp. 245–246 (C. Rossiter ed. 96) (J. Madison). For that reason, when the parties before this Court are States, the Court should be more circumspect in its use of equitable remedies, not less. We have explained, for example, that “[w]e are especially reluctant to read absent terms into an interstate compact given the federalism and separation-of-powers concerns that would arise were we to rewrite an agreement among sovereign States, to which the political branches consented.” Alabama, 560 U.S., at 352. The use of unbounded equitable power against States similarly threatens “to violate principles of state sovereignty and of the separation of powers,” 55 U.S., n controversies among States, the Court should therefore “exercise the power to impose equitable remedies only sparingly, subject to clear rules guiding its use.” at 3. Applying ordinary contract principles, would reject the Special Master’s recommendation to order disgorgement of Nebraska’s profits for breach of a compact. That remedy is not available for a nondeliberate breach of a contract. And even if it were, such an award must be based on Nebraska’s profits, not the arbitrary number the Master selected. A Although our precedents have not foreclosed disgorge­ ment of profits as a remedy for breach of a water compact, they have suggested that disgorgement would be avail- able, if at all, only for the most culpable breaches: those that are “deliberate.” Texas The Cite as: 574 U. S. (205) 7 Opinion of THOMAS, J. traditional remedy for breach of a water compact has been performance through delivery of water. See Kansas v. 533 U.S. (200) (O’Connor, J., concurring in part and dissenting in part). Although we deviated from that traditional remedy in Texas when we au­ thorized money the majority cites no case in which we have ever awarded disgorge­ ment. The lone reference to that remedy in our precedents is dictum in Texas asserting that the money award in that case would not encourage efficient breaches of water compacts “in light of the authority to order whatever additional sanction might be thought necessary for deliberate failure to perform” The lack of support for disgorgement in our compact cases comports with the general law of remedies. The usual remedy for breach of a contract is based on the injured party’s “actual loss caused by the breach.” Restatement (Second) of Contracts Comment e, p. 6 (979). Disgorgement, by contrast, is an extraordi­ nary remedy that goes beyond a plaintiff ’s requiring the breaching party to refund additional profits gained in the breach. See 3 D. Dobbs, Law of Remedies §2.7(3), pp. 66–67 (2d ed. 993). n American law, disgorgement of profits is not generally an available rem- edy for breach of contract. §2.7(4), Even if Texas supported a narrow exception for cases involving deliberate breach of a water compact, that ex­ ception would not apply here. Although it is uncontested that Nebraska breached the Compact and that Kansas lost $3.7 million as a result, ante, at 9–0, the Master expressly found that there is no evidence that Nebraska deliber- ately breached the Compact. Report of Special Master 30 (Report). n fact, Nebraska’s efforts “were ear­ nest and substantial enough to preclude a finding that this was a consciously opportunistic breach.” at 3. And although the majority adopts the finding that Nebraska KANSAS v. NEBRASKA Opinion of THOMAS, J. “knowingly failed” to comply with the Compact, ante, at 3 (internal quotation marks omitted), a finding that do not dispute, neither the parties nor the majority disagrees with the Master’s conclusion that Nebraska did not inten­ tionally or deliberately breach the Compact, ante, at 0– 4. Under such circumstances, disgorgement is not an available remedy. 2 The Special Master nevertheless recommended dis­ gorgement because Nebraska “knowingly exposed Kansas to a substantial risk” of noncompliance. Report 30. He rested this recommendation on the Restatement (Third) of Restitution and Unjust Enrichment (200). See Re­ port 30–. That section proposes awarding disgorge­ ment when a party’s profits from its breach are greater than the loss to the other party. The remedy is thought necessary because one party may “exploit the shortcom­ ings” of traditional remedies by breaching con­ tracts when its expected profits exceed the it would be required to pay to the other party. Restatement (Third) of Restitution Comment b, at 649. n other words, the remedy “condemns a form of conscious advantage-taking” and seeks to thwart an “opportunistic calculation” that breaching is better than performing. This Court, however, has never before relied on nor adopted its proposed theory of disgorgement. And for good reason: t lacks support in the law. One reviewer of has described it as a “novel extension” of restitution prin­ ciples that “will alter the doctrinal landscape of contract law.” Roberts, Restitutionary Disgorgement for Opportun­ istic Breach of Contract and Mitigation of Damages, 42 Loyola (LA) L. Rev. 3, (200). And few courts have ever relied on The sheer novelty of this proposed remedy counsels against applying it here. Cite as: 574 U. S. (205) 9 Opinion of THOMAS, J. n any event, opines that disgorgement should be available only when a party deliberately breaches a con­ tract. This makes sense. f disgorgement is an antidote for “efficient breach,” then it need only be administered when “conscious advantage-taking” and “opportunistic calculation” are present. But as noted above, the Master expressly found that no deliberate breach occurred. Re­ port 30. The Master’s reliance on was accordingly misplaced. 3 Perhaps recognizing the weakness in the Master’s rec­ ommendation, the majority takes a different approach, fashioning a new remedy of disgorgement for reckless breach. According to the majority, Nebraska’s conduct was essentially reckless, ante, at 4, and the Court may order disgorgement “when a State has demonstrated reckless disregard” for another State’s contractual rights, ante, at 6. As with the Restatement’s proposed theory, there is no basis for that proposition in our cases. Because disgorgement is available, if at all, only in cases of deliberate breach, the majority asserts that, “[i]n some areas of the law,” the line between intent and reckless disregard “makes no difference.” Ante, Accepting the truth of that proposition in some circumstances, the majority’s caveat acknowledges that it is not true in oth­ ers. ndeed, the law often places significant weight on the distinction between intentional and reckless conduct. See, e.g., 5 U.S. 57, 6 (9) (dis­ cussing “ ‘willful,’ ” “deliberate,” and “intentional” conduct, and distinguishing those terms from “reckless” conduct); see also Global-Tech Appliances, nc. v. SEB S. A., 563 U. S. – (20) (slip op., at 3–4) (distinguish­ ing “willful blindness” from “recklessness”). The majority provides scant support for its conclusion that breach of an interstate water compact is an area in 0 KANSAS v. NEBRASKA Opinion of THOMAS, J. which the line between intent and recklessness is practi­ cally irrelevant. t first relies on Bullock v. BankCham- paign, N. A., 569 U. S. (203) (slip op., at ), in which the Court determined the mental state necessary for “ ‘defalcation while acting in a fiduciary capacity,’ ” as used in the Bankruptcy Code. Ante, n the absence of a fiduciary relationship, however, Bullock has little relevance. Cf. Harris Trust and Sav. 530 U.S. (noting the special disgorgement rules that apply “when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person”). The majority next relies on Ernst & which addressed “scienter” under §0(b) of the Securities Act of 933. Ante, (citing 425 U.S., at ). The Court noted that it used the term “scienter” to mean “intent to deceive, manipulate, or defraud.” at 94, n. 2. t then asserted—in dictum and without support—that recklessness is considered to be a form of intentional conduct in some areas of the law, but it declined to address whether reckless conduct could be sufficient for §0(b) liability. That dictum is hardly sufficient grounds for claiming that recklessness and intent are equivalent mental states in compact disputes between States. f anything, the reverse is true. Disgorgement is strong medicine, and as with other forms of equitable power, we should impose it against the States “only sparingly.” 55 U.S., at 3 The majority insists that the justification for disgorgement is enhanced “when one State gambles with another State’s rights to a scarce natural resource.” Ante, at 6. But the way this Court has always discouraged gambling with this scarce resource is to require delivery of water, not money. Prior to 7, “we had never even suggested that mone­ tary could be recovered from a State as a remedy Cite as: 574 U. S. (205) Opinion of THOMAS, J. for its violation of an interstate compact apportioning the flow of an interstate stream.” 533 U.S., 3 (O’Connor, J., concurring in part and dissent­ ing in part). f a State’s right to the “scarce natural re­ source” of water is the problem, then perhaps the Court ought to follow its usual practice of ordering specific per­ formance rather than improvising a new remedy of “reck­ less disgorgement.” B The majority compounds its errors by authorizing an arbitrary amount of disgorgement. As explained above, the measure of the disgorgement award should be the profits derived from a deliberate breach. Yet the Special Master acknowledged that its $. million award was not based on any measure of Nebraska’s profits from breach­ ing the Compact. Report 79–0. The Master gave no dollar estimate of Nebraska’s profits and said only that its gain was “very much larger than Kansas’ loss” of $3.7 million, “likely by more than several multiples.” at 7. Despite producing no estimate more precise than “very much larger,” the Master ordered a disgorgement award of $. million. –79. The majority explains that “we cannot be sure why the Master selected the exact number he did.” Ante, at 9. ndeed. Neither the majority nor the Special Master nor can identify a justifiable basis for this amount. t appears that $. million just feels like not too much, but not too little. We should hold ourselves to a higher standard. n other contexts, we have demanded that district courts “provide proper justification” for a monetary award rather than divining an amount that appears to be “essentially arbi­ trary.” (200). We should do the same ourselves if we are going to award disgorgement here. As with ordinary disgorge­ 2 KANSAS v. NEBRASKA Opinion of THOMAS, J. ment should not be awarded “beyond an amount that the evidence permits to be established with reasonable cer­ tainty.” Restatement (Second) of Contracts And a disgorgement award ought to be calculated based on some­ thing more than the Special Master’s intuitions. The majority claims that the Master “took into account the appropriate considerations,” including “Nebraska’s incentives, past behavior, and more recent compliance efforts” in reaching the award. Ante, at 9. But it makes no difference that he took those factors into account if he arrived at a number that has no articulable relationship to Nebraska’s profits. Equitable disgorgement is not an arbitrary penalty designed to compel compliance, nor should it become one. What is more, the Master considered factors beyond those relevant to the calculation of a disgorgement award. n his view, $. million “moves substantially towards turning the actual recovery by Kansas, net of reasonable transaction costs, into an amount that approximates a full recovery for the harm suffered.” Report 79. n other words, $. million makes Kansas whole because it is a reasonable estimate of Kansas’ “transaction costs”—which presumably means the State’s attorney’s fees and litiga­ tion costs. But, under the “American Rule,” we generally do not award attorney’s fees “to a prevailing party absent explicit statutory authority.” Buckhannon Board & Care Home, 532 U.S. 5, (200) (internal quotation marks omitted). And neither the majority, nor Kansas, nor the Special Master offers any support for the proposi­ tion that a disgorgement award can smuggle in an award of attorney’s fees. f disgorgement were an appropriate remedy in this case, then the Court should require a calcu­ lation based on Nebraska’s profits rather than Kansas’ “transaction costs.” Cite as: 574 U. S. (205) 3 Opinion of THOMAS, J. A would also reject the Master’s recommendation to reform the Settlement because that recommendation conflicts with the equitable doctrine of reformation. The remedy of reformation is available to correct a contract if, “owing to mutual mistake, the language used therein did not fully or accurately express the agreement and inten­ tion of the parties.” Philippine Sugar Estates Development v. Government of Philippine slands, 247 U.S. 35, 39 (9). The well-established rule is that, when a written contract “fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may at the request of a party reform the writing to express the agreement.” Restatement (Second) of Contracts §55, 06. Reformation is thus available only when the parties reach an agreement but then “fail to express it correctly in the writing.” Comment a, 06. f “the parties make a written agreement that they would not otherwise have made because of a mistake other than one as to expres­ sion, the court will not reform a writing to reflect the agreement that it thinks they would have made.” Comment b, 0. Because modifying a written agree­ ment is an extraordinary step, a party seeking reformation must prove the existence of a mutual mistake of expres­ sion by “ ‘clear and convincing evidence.’ ” Comment c, 0. Nebraska cannot meet that burden because the States made no mistake in reducing their agreement to writing. Here are the terms the States agreed upon in their bind­ ing Settlement: “Beneficial Consumptive Use of mported Water Sup­ ply shall not count as Computed Beneficial Consump­ tive Use or Virgin Water Supply. Determinations 4 KANSAS v. NEBRASKA Opinion of THOMAS, J. of Beneficial Consumptive Use from mported Water Supply (whether determined expressly or by implica­ tion) shall be calculated in accordance with the [Republican River Compact Admin. (RRCA)] Account­ ing Procedures and by using the RRCA Groundwater Model.” Settlement p. 25. The States thus agreed not to count water imported from outside the Republican River Basin. But in the very same provision, they agreed to calculate the use of imported water using the RRCA Accounting Procedures and the RRCA Groundwater Model. The terms of the Settlement are thus crystal clear: The accounting procedures control determinations of consumptive use of imported water. And the parties do not contend that they made any draft­ ing mistake in recording the accounting procedures or the groundwater model. nstead, the parties’ mistake was their belief that the accounting procedures and water model they agreed upon would accurately exclude imported water from the calcula­ tion of Nebraska’s consumptive use. They were wrong about this. n fact, under dry weather conditions, when native water flows are depleted, the water model charges Nebraska for pumping imported water. Report 32–37. The parties did not realize the magnitude of this error. To the extent they thought about it at all, they realized the water model was not perfectly precise, but assumed that only very small, immaterial amounts of imported water would make their way into the calculations. See 7. A key member of the modeling committee testified that he was “intellectually aware” of the imported-water issue, but that “we didn’t believe that that was going to be a big issue.” See Tr. 727 (testimony of Willem Schreüder). There is no testimony from any source suggesting that the parties agreed to a different water model. See Report 26–27. Nebraska thus cannot meet its burden to show by Cite as: 574 U. S. (205) 5 Opinion of THOMAS, J. clear and convincing evidence that the parties agreed to Nebraska’s “ ‘5-run formula,’ ” ante, 0, but failed to express that agreement accurately in writing. f there is any mistake in this Settlement, it is not a mistake in writing, but in thinking. The parties knew what the methodology was and they expressly agreed to that methodology. They simply thought the methodology would work better than it did. See Tr. 727. Even though the methodology they agreed upon was imperfect, a writ­ ing may be reformed only to conform with the parties’ actual agreement, not to create a better one. The appropriate equitable remedy, if any, in these cir­ cumstances would be rescission, not reformation. n gen­ eral, if there is a mutual mistake “as to a basic assumption on which the contract was made,” the adversely affected party may seek to avoid the contract. Restatement (Sec­ ond) of Contracts §52, 5; see also §55, Com­ ment b, llustration 4, 09 (noting that reformation is not available to remedy a mistake as to something other than reducing the agreement to writing). The States have not asked for rescission, of course, but it is incorrect to suggest, see ante, 7, that there is no other solution to this problem. B Realizing that ordinary reformation is not available for Nebraska, the majority again summons its equitable power and renegotiates the accounting procedures to create what it considers a fairer agreement for the States. n doing so, it announces a new doctrine of reformation: n resolving water disputes, the Court will “correct subsidi­ ary technical agreements to promote accuracy in appor­ tion[ment].” Ante, 4. From here on out, the Court will “modif[y] a technical agreement to correct material errors in the way it operates and thus align it with the compact­ ing States’ intended apportionment.” Ante, 5. 6 KANSAS v. NEBRASKA Opinion of THOMAS, J. As this case illustrates, adopting this novel remedy is a mistake. The majority fails in its attempt to conform this new doctrine of “technical agreement correction” with both principles of equity and our precedent governing compact disputes. And after creating an unjustified doctrine, the majority misapplies it. To begin, the majority’s reliance on equitable power is misplaced. That a court is exercising equitable power means only that it must look to established principles of equity. And reformation is the equitable doctrine that Nebraska seeks in this case. The Court should thus follow the rules of reformation, just as it would adhere to the contours of any other equitable doctrine. ndeed, we have demanded as much from lower courts when they exercise their power to grant other forms of equitable relief, such as a permanent injunction. See eBay 547 U.S. 3, f a court fails to apply the proper standard for a permanent injunction, it is no answer to recite the obvious fact that the court acted in equity. See 94. Putting aside the assertion of equitable power, there is no support in our precedents for the majority’s doctrine of “technical agreement correction.” The majority first sug­ gests that this Court reformed a “technical document” in Texas v. New (0) (Texas ). Ante, 4. But there was no reformation at issue in that case—either of the compact or an ancillary technical agreement—only the interpretation of the words in the Pecos River Compact. Texas 40; see Report of Special Master on Obligation of New to Texas under the Pecos River Compact, O. T. 975, No. 65, Orig., pp. 5–6, 34–37 (filed Oct. 5, 979) (purporting to interpret the compact). The majority also claims that in 543 Cite as: 574 U. S. (205) 7 Opinion of THOMAS, J. U. S. 6 we “approved the Master’s alteration of the parties’ agreement” Ante, 4. But nothing in supports revising the express terms of a settlement agreement. n that case, the Court adopted a Special Master’s recommendation to calculate water usage based on a 0–year average rather than a single year. 543 U.S., at 99–00. There is no suggestion in the Court’s opinion (nor in the briefs filed in that case) that the States had previously agreed to use a -year method for calculat­ ing water usage or that anyone thought “reformation” of the compact or any ancillary agreement was needed. To the contrary, the Court explained that the compact simply did “not define the length of time over which” the States must make the relevant measurements. at 00. There was thus nothing to rewrite, nothing to reform. The majority suggests that the States in that case had “ ‘agreed to the use of annual measurement’ ” for calculating future water usage, ante, 4 (quoting at 02), but the quoted passage refers to the unre­ lated fact that the States had, earlier in the litigation, “agreed to the use of annual measurement for purposes of calculating past” not future water usage, 543 U.S., at 02 (emphasis added). That litigation stipulation did not apply to the calculation of future water usage or future Even if the majority were correct that a calculation is simply the flip side of a water usage calculation, ante, 5, n. 0, that conclusion plainly would apply only to calculation of past water us­ age. t is thus no surprise that the Court held that any pre-existing agreements did not govern the method of measuring future compliance. Kansas v. Colo- at 03. Given that the Court plainly did not apply any such agreements, it cannot be said to have altered them. KANSAS v. NEBRASKA Opinion of THOMAS, J. 2 Having improperly invented the doctrine of “technical agreement correction,” the majority proceeds to misapply it. n “correcting” the accounting procedures, the majority purports to align them with the intent of the compacting parties. Ante, 4–25. But we know that the majority’s reformed contract does not match the “States’ intended apportionment.” Ante, 5. We know this because the Settlement expressly states that, for purposes of appor­ tioning the flow, imported water use would be calculated using the agreed-upon “Accounting Procedures” and the “Groundwater Model.” Settlement 5. The States never intended to adopt the 5-run formula, and the Court has simply picked a winner and adopted Nebraska’s 5-run proposal, notwithstanding a binding agreement to the contrary. The majority also misapplies its “correction” remedy in claiming that its fix will prevent the existing accounting procedures from “affirmatively violat[ing] the Compact.” Ante, 6. cannot see how this is true. First, the exist­ ing procedures do not violate the Compact. We should favor an interpretation of the Compact that would render its performance possible, rather than “impossible or mean­ ingless.” 2 S. Williston, Law of Contracts p. 202 (920). Read in light of this principle, the phrase “Virgin Water Supply” must be interpreted to allow for some imperfection in the groundwater models. After all, groundwater models are approximations of the physical world. Tr. 722–726. No accounting procedure can plausi­ bly track every drop of water through the 24,900 square mile Basin. Second, even if the existing accounting procedures would violate the Compact because they allocate some imported water, the majority’s “correction” will not solve the problem. Because water models are always approxi­ mations, even the 5-run formula will be imprecise and will Cite as: 574 U. S. (205) 9 Opinion of THOMAS, J. therefore violate the Compact if it is read to require the States accurately to account for every drop of imported water. * * * Claiming to draw from a vast reservoir of equitable power, the Court ignores the limits of its role in resolving water-compact disputes between States. And in the name of protecting downstream States from their upstream neighbors, it diminishes the sovereign status of each of them. We owe the parties better. would apply the same principles of contract law that we have previously applied to water disputes between States. Under those principles, would sustain Nebraska’s and ’s exceptions to the Master’s recommendation to order $. million in disgorgement, and overrule Kansas’ exception to that recommendation. would also sustain Kansas’ exception to the Master’s recommendation to reform the Settlement. agree only with the Court’s decisions to overrule Ne­ braska’s exception to the Master’s finding that it know- ingly failed to comply with the Compact, and Kansas’ ex­ ception to the Master’s recommendation not to issue an injunction requiring Nebraska to comply with the Compact

Justice Ginsburg

majority

Drye v. United States

2000-01-12

https://www.courtlistener.com/opinion/118322/drye-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118322/

1999-012

This case concerns the respective provinces of state and federal law in determining what is property for purposes of federal tax lien legislation. At the time of his mother's death, petitioner Rohn F. Drye, Jr., was insolvent and owed the Federal Government some $325,000 on unpaid tax assessments for which notices of federal tax liens had been filed. His mother died intestate, leaving an estate with a total value of approximately $233,000 to which he was sole heir. After the passage of several months, Drye disclaimed his interest in his mother's estate, which then passed by operation of state law to his daughter. This case presents the question whether Drye's interest as heir to his mother's estate constituted "property" or a "righ[t] to property" to which the federal tax liens attached under 26 U.S. C. § 6321, despite Drye's exercise of the prerogative state law accorded him to disclaim the interest retroactively. We hold that the disclaimer did not defeat the federal tax liens. The Internal Revenue Code's prescriptions are most sensibly read to look to state law for delineation of the taxpayer's rights or interests, but to leave to federal law the determination whether those rights or interests constitute "property" or "rights to property" within the meaning of § 6321. "[O]nce it has been determined that state law creates sufficient interests in the [taxpayer] to satisfy the requirements of [the federal tax lien provision], state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States." United States v. Bess, 357 U.S. 51, 56-57 (1958). I A The relevant facts are not in dispute. On August 3, 1994, Irma Deliah Drye died intestate, leaving an estate worth *53 approximately $233,000, of which $158,000 was personalty and $75,000 was realty located in Pulaski County, Arkansas. Petitioner Rohn F. Drye, Jr., her son, was sole heir to the estate under Arkansas law. See Ark. Code Ann. § 28-9—214 (1987) (intestate interest passes "[f]irst, to the children of the intestate"). On the date of his mother's death, Drye was insolvent and owed the Government approximately $325,000, representing assessments for tax deficiencies in years 1988, 1989, and 1990. The Internal Revenue Service (IRS or Service) had made assessments against Drye in November 1990 and May 1991 and had valid tax liens against all of Drye's "property and rights to property" pursuant to 26 U.S. C. § 6321. Drye petitioned the Pulaski County Probate Court for appointment as administrator of his mother's estate and was so appointed on August 17, 1994. Almost six months later, on February 4, 1995, Drye filed in the Probate Court and land records of Pulaski County a written disclaimer of all interests in his mother's estate. Two days later, Drye resigned as administrator of the estate. Under Arkansas law, an heir may disavow his inheritance by filing a written disclaimer no later than nine months after the death of the decedent. Ark. Code Ann. §§ 28-2—101, 28— 2-107 (1987). The disclaimer creates the legal fiction that the disclaimant predeceased the decedent; consequently, the disclaimant's share of the estate passes to the person next in line to receive that share. The disavowing heir's creditors, Arkansas law provides, may not reach property thus disclaimed. § 28-2—108. In the case at hand, Drye's disclaimer caused the estate to pass to his daughter, Theresa Drye, who succeeded her father as administrator and promptly established the Drye Family 1995 Trust (Trust). On March 10, 1995, the Probate Court declared valid Drye's disclaimer of all interest in his mother's estate and accordingly ordered final distribution of the estate to Theresa Drye. Theresa Drye then used the estate's proceeds to fund the Trust, of which she and, during their lifetimes, her *54 parents are the beneficiaries. Under the Trust's terms, distributions are at the discretion of the trustee, Drye's counsel Daniel M. Traylor, and may be made only for the health, maintenance, and support of the beneficiaries. The Trust is spendthrift, and under state law, its assets are therefore shielded from creditors seeking to satisfy the debts of the Trust's beneficiaries. Also in 1995, the IRS and Drye began negotiations regarding Drye's tax liabilities. During the course of the negotiations, Drye revealed to the Service his beneficial interest in the Trust. Thereafter, on April 11, 1996, the IRS filed with the Pulaski County Circuit Clerk and Recorder a notice of federal tax lien against the Trust as Drye's nominee. The Service also served a notice of levy on accounts held in the Trust's name by an investment bank and notified the Trust of the levy. B On May 1, 1996, invoking 26 U.S. C. § 7426(a)(1), the Trust filed a wrongful levy action against the United States in the United States District Court for the Eastern District of Arkansas. The Government counterclaimed against the Trust, the trustee, and the trust beneficiaries, seeking to reduce to judgment the tax assessments against Drye, confirm its right to seize the Trust's assets in collection of those debts, foreclose on its liens, and sell the Trust property. On crossmotions for summary judgment, the District Court ruled in the Government's favor. The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment. Drye Family 1995 Trust v. United States, 152 F.3d 892 (1998). The Court of Appeals understood our precedents to convey that "state law determines whether a given set of circumstances creates a right or interest; federal law then dictates whether that right or interest constitutes `property' or the `right to property' under § 6321." Id., at 898. *55 We granted certiorari, 526 U.S. 1063 (1999), toresolve a conflict between the Eighth Circuit's holding and decisions of the Fifth and Ninth Circuits.[1] We now affirm. II Under the relevant provisions of the Internal Revenue Code, to satisfy a tax deficiency, the Government may impose a lien on any "property" or "rights to property" belonging to the taxpayer. Section 6321 provides: "If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount . . . shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S. C. § 6321. A complementary provision, § 6331(a), states: "If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax . . . by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax."[2] *56 The language in §§ 6321 and 6331(a), this Court has observed, "is broad and reveals on its face that Congress meant to reach every interest in property that a taxpayer might have." United States v. National Bank of Commerce, 472 U.S. 713, 719-720 (1985) (citing 4 B. Bittker, Federal Taxation of Income, Estates and Gifts ¶ 111.5.4, p. 111-100 (1981)); see also Glass City Bank v. United States, 326 U.S. 265, 267 (1945) ("Stronger language could hardly have been selected to reveal a purpose to assure the collection of taxes."). When Congress so broadly uses the term "property," we recognize, as we did in the context of the gift tax, that the Legislature aims to reach "`every species of right or interest protected by law and having an exchangeable value.' " Jewett v. Commissioner, 455 U.S. 305, 309 (1982) (quoting S. Rep. No. 665, 72d Cong., 1st Sess., 39 (1932); H. R. Rep. No. 708, 72d Cong., 1st Sess., 27 (1932)). Section 6334(a) of the Code is corroborative. That provision lists property exempt from levy. The list includes 13 categories of items; among the enumerated exemptions are certain items necessary to clothe and care for one's family, unemployment compensation, and workers' compensation benefits. §§ 6334(a)(1), (2),(4), (7). The enumeration contained in § 6334(a), Congress directed, is exclusive: "Notwithstanding any other law of the United States . . . , no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." § 6334(c). Inheritances or devises disclaimed under state law are not included in § 6334(a)'s catalog of property exempt from levy. See Bess, 357 U. S., at 57 ("The fact that . .. Congress provided specific exemptions from distraint is evidence that Congress did not intend to recognize further exemptions which would prevent attachment of [federal tax] liens[.]"); United States v. Mitchell, 403 U.S. 190, 205 (1971) ("Th[e] language [of § 6334] is specific and it is clear and there is no room in it for automatic exemption of property that *57 happens to be exempt from state levy under state law."). The absence of any recognition of disclaimers in §§ 6321, 6322, 6331(a), and 6334(a) and (c), the relevant tax collection provisions, contrasts with § 2518(a) of the Code, which renders qualifying state-law disclaimers "with respect to any interest in property" effective for federal wealth-transfer tax purposes and for those purposes only.[3] Drye nevertheless refers to cases indicating that state law is the proper guide to the critical determination whether his interest in his mother's estate constituted "property" or "rights to property" under § 6321. His position draws support from two recent appellate opinions: Leggett v. United States, 120 F.3d 592, 597 (CA5 1997) ("Section 6321 adopts the state's definition of property interest."); and Mapes v. United States, 15 F.3d 138, 140 (CA9 1994) ("For the answer to th[e] question [whether taxpayer had the requisite interest in property], we must look to state law, not federal law."). Although our decisions in point have not been phrased so meticulously as to preclude Drye's argument,[4] we are satisfied that the Code and interpretive case law place under federal, not state, control the ultimate issue whether a taxpayer has a beneficial interest in any property subject to levy for unpaid federal taxes. *58 III As restated in National Bank of Commerce: "The question whether a state-law right constitutes `property' or `rights to property' is a matter of federal law." 472 U.S., at 727. We look initially to state law to determine what rights the taxpayer has in the property the Government seeks to reach, then to federal law to determine whether the taxpayer's state-delineated rights qualify as "property" or "rights to property" within the compass of the federal tax lien legislation. Cf. Morgan v. Commissioner, 309 U.S. 78, 80 (1940) ("State law creates legal interests and rights. The federal revenue acts designate what interests or rights, so created, shall be taxed."). In line with this division of competence, we held that a taxpayer's right under state law to withdraw the whole of the proceeds from a joint bank account constitutes "property" or the "righ[t] to property" subject to levy for unpaid federal taxes, although state law would not allow ordinary creditors similarly to deplete the account. National Bank of Commerce, 472 U. S., at 723-727. And we earlier held that a taxpayer's right under a life insurance policy to compel his insurer to pay him the cash surrender value qualifies as "property" or a "righ[t] to property" subject to attachment for unpaid federal taxes, although state law shielded the cash surrender value from creditors' liens. Bess, 357 U. S., at 56— 57.[5] By contrast, we also concluded, again as a matter of *59 federal law, that no federal tax lien could attach to policy proceeds unavailable to the insured in his lifetime. Id., at 55-56 ("It would be anomalous to view as `property' subject to lien proceeds never within the insured's reach to enjoy.").[6] Just as "exempt status under state law does not bind the federal collector," Mitchell, 403 U. S., at 204, so federal tax law "is not struck blind by a disclaimer," United States v. Irvine, 511 U.S. 224, 240 (1994). Thus, in Mitchell, the Court held that, although a wife's renunciation of a marital interest was treated as retroactive under state law, that state-law disclaimer did not determine the wife's liability for federal tax on her share of the community income realized before the renunciation. See 403 U.S., at 204 (right to renounce does not indicate that taxpayer never had a right to property). IV The Eighth Circuit, with fidelity to the relevant Code provisions and our case law, determined first what rights state law accorded Drye in his mother's estate. It is beyond debate, the Court of Appeals observed, that under Arkansas *60 law Drye had, at his mother's death, a valuable, transferable, legally protected right to the property at issue. See 152 F.3d, at 895 (although Code does not define "property" or "rights to property," appellate courts read those terms to encompass "state-law rights or interests that have pecuniary value and are transferable"). The court noted, for example, that a prospective heir may effectively assign his expectancy in an estate under Arkansas law, and the assignment will be enforced when the expectancy ripens into a present estate. See id., at 895-896 (citing several Arkansas Supreme Court decisions, including: Clark v. Rutherford, 227 Ark. 270, 270— 271, 298 S.W.2d 327, 330 (1957); Bradley Lumber Co. of Ark. v. Burbridge, 213 Ark. 165, 172, 210 S.W.2d 284, 288 (1948); Leggett v. Martin, 203 Ark. 88, 94, 156 S.W.2d 71, 74-75 (1941)).[7] Drye emphasizes his undoubted right under Arkansas law to disclaim the inheritance, see Ark. Code Ann. § 28-2—101 (1987), a right that is indeed personal and not marketable. See Brief for Petitioners 13 (right to disclaim is not transferable and has no pecuniary value). But Arkansas law primarily gave Drye a right of considerable value—the right either to inherit or to channel the inheritance to a close family member (the next lineal descendant). That right simply cannot be written off as a mere "personal right . . . to accept or reject [a] gift." Ibid. In pressing the analogy to a rejected gift, Drye overlooks this crucial distinction. A donee who declines an inter vivos *61 gift generally restores the status quo ante, leaving the donor to do with the gift what she will. The disclaiming heir or devisee, in contrast, does not restore the status quo, for the decedent cannot be revived. Thus the heir inevitably exercises dominion over the property. He determines who will receive the property—himself if he does not disclaim, a known other if he does. See Hirsch, The Problem of the Insolvent Heir, 74 Cornell L. Rev. 587, 607-608 (1989). This power to channel the estate's assets warrants the conclusion that Drye held "property" or a "righ[t] to property" subject to the Government's liens. * * * In sum, in determining whether a federal taxpayer's state-law rights constitute "property" or "rights to property," "[t]he important consideration is the breadth of the control the [taxpayer] could exercise over the property." Morgan, 309 U. S., at 83. Drye had the unqualified right to receive the entire value of his mother's estate (less administrative expenses), see National Bank of Commerce, 472 U. S., at 725 (confirming that unqualified "right to receive property is itself a property right" subject to the tax collector's levy), or to channel that value to his daughter. The control rein he held under state law, we hold, rendered the inheritance "property" or "rights to property" belonging to him within the meaning of § 6321, and hence subject to the federal tax liens that sparked this controversy. For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed.

This case concerns the respective provinces of state and federal law in determining what is property for purposes of federal tax lien legislation. At the time of his mother's death, petitioner Rohn F. Drye, Jr., was insolvent and owed the Federal Government some $325,000 on unpaid tax assessments for which notices of federal tax liens had been filed. His mother died intestate, leaving an estate with a total value of approximately $233,000 to which he was sole heir. After the passage of several months, Drye disclaimed his interest in his mother's estate, which then passed by operation of state law to his daughter. This case presents the question whether Drye's interest as heir to his mother's estate constituted "property" or a "righ[t] to property" to which the federal tax liens attached under 26 U.S. C. 6321, despite Drye's exercise of the prerogative state law accorded him to disclaim the interest retroactively. We hold that the disclaimer did not defeat the federal tax The Internal Revenue Code's prescriptions are most sensibly read to look to state law for delineation of the taxpayer's rights or interests, but to leave to federal law the determination whether those rights or interests constitute "property" or "rights to property" within the meaning of 6321. "[O]nce it has been determined that state law creates sufficient interests in the [taxpayer] to satisfy the requirements of [the federal tax lien provision], state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States." United I A The relevant facts are not in dispute. On August 3, Irma Deliah Drye died intestate, leaving an estate worth *53 approximately $233,000, of which $158,000 was personalty and $75,000 was realty located in Pulaski County, Arkansas. Petitioner Rohn F. Drye, Jr., her son, was sole heir to the estate under Arkansas law. See Ark. Code Ann. 28-9—214 (1987) (intestate interest passes "[f]irst, to the children of the intestate"). On the date of his mother's death, Drye was insolvent and owed the Government approximately $325,000, representing assessments for tax deficiencies in years 1988, 1989, and 1990. The Internal Revenue Service (IRS or Service) had made assessments against Drye in November 1990 and May 1991 and had valid tax liens against all of Drye's "property and rights to property" pursuant to 26 U.S. C. 6321. Drye petitioned the Pulaski County Probate Court for appointment as administrator of his mother's estate and was so appointed on August 17, Almost six months later, on February 4, 1995, Drye filed in the Probate Court and land records of Pulaski County a written disclaimer of all interests in his mother's estate. Two days later, Drye resigned as administrator of the estate. Under Arkansas law, an heir may disavow his inheritance by filing a written disclaimer no later than nine months after the death of the decedent. Ark. Code Ann. 28-2—101, 28— 2-107 (1987). The disclaimer creates the legal fiction that the disclaimant predeceased the decedent; consequently, the disclaimant's share of the estate passes to the person next in line to receive that share. The disavowing heir's creditors, Arkansas law provides, may not reach property thus disclaimed. 28-2—108. In the case at hand, Drye's disclaimer caused the estate to pass to his daughter, Theresa Drye, who succeeded her father as administrator and promptly established the Drye Family 1995 Trust (Trust). On March 10, 1995, the Probate Court declared valid Drye's disclaimer of all interest in his mother's estate and accordingly ordered final distribution of the estate to Theresa Drye. Theresa Drye then used the estate's proceeds to fund the Trust, of which she and, during their lifetimes, her *54 parents are the beneficiaries. Under the Trust's terms, distributions are at the discretion of the trustee, Drye's counsel Daniel M. Traylor, and may be made only for the health, maintenance, and support of the beneficiaries. The Trust is spendthrift, and under state law, its assets are therefore shielded from creditors seeking to satisfy the debts of the Trust's beneficiaries. Also in 1995, the IRS and Drye began negotiations regarding Drye's tax liabilities. During the course of the negotiations, Drye revealed to the Service his beneficial interest in the Trust. Thereafter, on April 11, 1996, the IRS filed with the Pulaski County Circuit Clerk and Recorder a notice of federal tax lien against the Trust as Drye's nominee. The Service also served a notice of levy on accounts held in the Trust's name by an investment bank and notified the Trust of the levy. B On May 1, 1996, invoking 26 U.S. C. 7426(a)(1), the Trust filed a wrongful levy action against the United States in the United States District Court for the Eastern District of Arkansas. The Government counterclaimed against the Trust, the trustee, and the trust beneficiaries, seeking to reduce to judgment the tax assessments against Drye, confirm its right to seize the Trust's assets in collection of those debts, foreclose on its liens, and sell the Trust property. On crossmotions for summary judgment, the District Court ruled in the Government's favor. The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment. Drye Family 1995 The Court of Appeals understood our precedents to convey that "state law determines whether a given set of circumstances creates a right or interest; federal law then dictates whether that right or interest constitutes `property' or the `right to property' under 6321." *55 We granted certiorari, toresolve a conflict between the Eighth Circuit's holding and decisions of the Fifth and Ninth Circuits.[1] We now affirm. II Under the relevant provisions of the Internal Revenue Code, to satisfy a tax deficiency, the Government may impose a lien on any "property" or "rights to property" belonging to the taxpayer. Section 6321 provides: "If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S. C. 6321. A complementary provision, 6331(a), states: "If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax."[2] *56 The language in 6321 and 6331(a), this Court has observed, "is broad and reveals on its face that Congress meant to reach every interest in property that a taxpayer might have." United ; see also Glass City When Congress so broadly uses the term "property," we recognize, as we did in the context of the gift tax, that the Legislature aims to reach "`every species of right or interest protected by law and having an exchangeable value.' " Section 6334(a) of the Code is corroborative. That provision lists property exempt from levy. The list includes 13 categories of items; among the enumerated exemptions are certain items necessary to clothe and care for one's family, unemployment compensation, and workers' compensation benefits. 6334(a)(1), (2),(4), (7). The enumeration contained in 6334(a), Congress directed, is exclusive: "Notwithstanding any other law of the United States no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." 6334(c). Inheritances or devises disclaimed under state law are not included in 6334(a)'s catalog of property exempt from levy. See ; United ("Th[e] language [of 6334] is specific and it is clear and there is no room in it for automatic exemption of property that *57 happens to be exempt from state levy under state law."). The absence of any recognition of disclaimers in 6321, 6322, 6331(a), and 6334(a) and (c), the relevant tax collection provisions, contrasts with 2518(a) of the Code, which renders qualifying state-law disclaimers "with respect to any interest in property" effective for federal wealth-transfer tax purposes and for those purposes only.[3] Drye nevertheless refers to cases indicating that state law is the proper guide to the critical determination whether his interest in his mother's estate constituted "property" or "rights to property" under 6321. His position draws support from two recent appellate opinions: ; and Although our decisions in point have not been phrased so meticulously as to preclude Drye's argument,[4] we are satisfied that the Code and interpretive case law place under federal, not state, control the ultimate issue whether a taxpayer has a beneficial interest in any property subject to levy for unpaid federal taxes. *58 III As restated in National Bank of : "The question whether a state-law right constitutes `property' or `rights to property' is a matter of federal law." We look initially to state law to determine what rights the taxpayer has in the property the Government seeks to reach, then to federal law to determine whether the taxpayer's state-delineated rights qualify as "property" or "rights to property" within the compass of the federal tax lien legislation. Cf. U.S. 78, In line with this division of competence, we held that a taxpayer's right under state law to withdraw the whole of the proceeds from a joint bank account constitutes "property" or the "righ[t] to property" subject to levy for unpaid federal taxes, although state law would not allow ordinary creditors similarly to deplete the account. National Bank of -727. And we earlier held that a taxpayer's right under a life insurance policy to compel his insurer to pay him the cash surrender value qualifies as "property" or a "righ[t] to property" subject to attachment for unpaid federal taxes, although state law shielded the cash surrender value from creditors' — 57.[5] By contrast, we also concluded, again as a matter of *59 federal law, that no federal tax lien could attach to policy proceeds unavailable to the insured in his lifetime.[6] Just as "exempt status under state law does not bind the federal collector," so federal tax law "is not struck blind by a disclaimer," United Thus, in the Court held that, although a wife's renunciation of a marital interest was treated as retroactive under state law, that state-law disclaimer did not determine the wife's liability for federal tax on her share of the community income realized before the renunciation. See IV The Eighth Circuit, with fidelity to the relevant Code provisions and our case law, determined first what rights state law accorded Drye in his mother's estate. It is beyond debate, the Court of Appeals observed, that under Arkansas *60 law Drye had, at his mother's death, a valuable, transferable, legally protected right to the property at issue. See The court noted, for example, that a prospective heir may effectively assign his expectancy in an estate under Arkansas law, and the assignment will be enforced when the expectancy ripens into a present estate. See at 895-896 ; Bradley Lumber Co. of ; ).[7] Drye emphasizes his undoubted right under Arkansas law to disclaim the inheritance, see Ark. Code Ann. 28-2—101 (1987), a right that is indeed personal and not marketable. See Brief for Petitioners 13 (right to disclaim is not transferable and has no pecuniary value). But Arkansas law primarily gave Drye a right of considerable value—the right either to inherit or to channel the inheritance to a close family member (the next lineal descendant). That right simply cannot be written off as a mere "personal right to accept or reject [a] gift." In pressing the analogy to a rejected gift, Drye overlooks this crucial distinction. A donee who declines an inter vivos *61 gift generally restores the status quo ante, leaving the donor to do with the gift what she will. The disclaiming heir or devisee, in contrast, does not restore the status quo, for the decedent cannot be revived. Thus the heir inevitably exercises dominion over the property. He determines who will receive the property—himself if he does not disclaim, a known other if he does. See Hirsch, The Problem of the Insolvent Heir, This power to channel the estate's assets warrants the conclusion that Drye held "property" or a "righ[t] to property" subject to the Government's * * * In sum, in determining whether a federal taxpayer's state-law rights constitute "property" or "rights to property," "[t]he important consideration is the breadth of the control the [taxpayer] could exercise over the property." U. S., at 83. Drye had the unqualified right to receive the entire value of his mother's estate (less administrative expenses), see National Bank of or to channel that value to his daughter. The control rein he held under state law, we hold, rendered the inheritance "property" or "rights to property" belonging to him within the meaning of 6321, and hence subject to the federal tax liens that sparked this controversy. For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed.

Justice O'Connor

majority

Lockyer v. Andrade

2003-03-05

https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/

https://www.courtlistener.com/api/rest/v3/clusters/127898/

2002-029

This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in ruling that the California Court of Appeal's decision affirming Leandro Andrade's two consecutive terms of 25 years to life in prison for a "third strike" conviction is contrary to, or an unreasonable application of, clearly established federal law as determined by this Court within the meaning of 28 U.S. C. § 2254(d)(1). I A On November 4, 1995, Leandro Andrade stole five videotapes worth $84.70 from a Kmart store in Ontario, California. Security personnel detained Andrade as he was leaving the store. On November 18, 1995, Andrade entered a different Kmart store in Montclair, California, and placed four videotapes worth $68.84 in the rear waistband of his pants. Again, security guards apprehended Andrade as he was exiting the premises. Police subsequently arrested Andrade for these crimes. These two incidents were not Andrade's first or only encounters with law enforcement. According to the state probation officer's presentence report, Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of "[t]ransportation of [m]arijuana," App. 24, and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony *67 of "[t]ransportation of [m]arijuana," ibid., and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation — escape from federal prison. He was paroled from the state penitentiary system in 1993. A state probation officer interviewed Andrade after his arrest in this case. The presentence report notes: "The defendant admitted committing the offense. The defendant further stated he went into the K-Mart Store to steal videos. He took four of them to sell so he could buy heroin. He has been a heroin addict since 1977. He says when he gets out of jail or prison he always does something stupid. He admits his addiction controls his life and he steals for his habit." Id., at 25. Because of his 1990 misdemeanor conviction, the State charged Andrade in this case with two counts of petty theft with a prior conviction, in violation of Cal. Penal Code Ann. § 666 (West Supp. 2002). Under California law, petty theft with a prior conviction is a so-called "wobbler" offense because it is punishable either as a misdemeanor or as a felony. Ibid.; cf. Ewing v. California, ante, at 16-17 (plurality opinion). The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. See ante, at 17. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing. See People v. Superior Court of Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 979, 928 P.2d 1171, 1177-1178 (1997); see also Ewing v. California, ante, at 17. Under California's three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison. See Cal. Penal Code Ann. § 667(e)(2)(A) (West 1999); see also Ewing v. California, ante, at 16. In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. The trial court denied Andrade's motion to reduce the offenses *68 to misdemeanors, both before the jury verdict and again in state habeas proceedings. A jury found Andrade guilty of two counts of petty theft with a prior conviction. According to California law, a jury must also find that a defendant has been convicted of at least two serious or violent felonies that serve as qualifying offenses under the three strikes regime. In this case, the jury made a special finding that Andrade was convicted of three counts of first-degree residential burglary. A conviction for first-degree residential burglary qualifies as a serious or violent felony for the purposes of the three strikes law. Cal. Penal Code Ann. §§ 667.5, 1192.7 (West 1999); see also Ewing v. California, ante, at 19. As a consequence, each of Andrade's convictions for theft under Cal. Penal Code Ann. § 666 (West Supp. 2002) triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced Andrade to two consecutive terms of 25 years to life in prison. See §§ 667(c)(6), 667(e)(2)(B). The State stated at oral argument that under the decision announced by the Supreme Court of California in People v. Garcia, 20 Cal. 4th 490, 976 P.2d 831 (1999) — a decision that postdates his conviction and sentence — it remains "available" for Andrade to "file another State habeas corpus petition" arguing that he should serve only one term of 25 years to life in prison because "sentencing courts have a right to dismiss strikes on a count-by-count basis." Tr. of Oral Arg. 24. B On direct appeal in 1997, the California Court of Appeal affirmed Andrade's sentence of two consecutive terms of 25 years to life in prison. It rejected Andrade's claim that his sentence violates the constitutional prohibition against cruel and unusual punishment. The court stated that "the proportionality analysis" of Solem v. Helm, 463 U.S. 277 (1983), "is questionable in light of" Harmelin v. Michigan, 501 U.S. 957 (1991). App. to Pet. for Cert. 76. The court then applied *69 our decision in Rummel v. Estelle, 445 U.S. 263 (1980), where we rejected the defendant's claim that a life sentence was "`grossly disproportionate' to the three felonies that formed the predicate for his sentence." Id., at 265. The California Court of Appeal then examined Andrade's claim in light of the facts in Rummel: "Comparing [Andrade's] crimes and criminal history with that of defendant Rummel, we cannot say the sentence of 50 years to life at issue in this case is disproportionate and constitutes cruel and unusual punishment under the United States Constitution." App. to Pet. for Cert. 76-77. After the Supreme Court of California denied discretionary review, Andrade filed a petition for a writ of habeas corpus in Federal District Court. The District Court denied his petition. The Ninth Circuit granted Andrade a certificate of appealability as to his claim that his sentence violated the Eighth Amendment, and subsequently reversed the judgment of the District Court. 270 F.3d 743 (2001). The Ninth Circuit first noted that it was reviewing Andrade's petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Applying its own precedent, the Ninth Circuit held that an unreasonable application of clearly established federal law occurs "when our independent review of the legal question `leaves us with a "firm conviction" that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous — in other words that clear error occurred.'" 270 F.3d, at 753 (alteration in original) (quoting Van Tran v. Lindsey, 212 F.3d 1143, 1153-1154 (CA9 2000)). The court then reviewed our three most recent major precedents in this area — Rummel v. Estelle, supra, Solem v. Helm, supra, and Harmelin v. Michigan, supra. The Ninth Circuit "follow[ed] the test prescribed by Justice Kennedy in Harmelin," concluding that "both Rummel and Solem remain good law and are instructive in Harmelin's application." *70 270 F. 3d, at 766. It then noted that the California Court of Appeal compared the facts of Andrade's case to the facts of Rummel, but not Solem. 270 F. 3d, at 766. The Ninth Circuit concluded that it should grant the writ of habeas corpus because the state court's "disregard for Solem results in an unreasonable application of clearly established Supreme Court law," and "is irreconcilable with ... Solem," thus constituting "clear error." Id., at 766-767. Judge Sneed dissented in relevant part. He wrote that "[t]he sentence imposed in this case is not one of the `exceedingly rare' terms of imprisonment prohibited by the Eighth Amendment's proscription against cruel and unusual punishment." Id., at 767 (quoting Harmelin v. Michigan, supra, at 1001 (KENNEDY, J., concurring in part and concurring in judgment)). Under his view, the state court decision upholding Andrade's sentence was thus "not an unreasonable application of clearly established federal law." 270 F.3d, at 772. We granted certiorari, 535 U.S. 969 (2002), and now reverse. II Andrade's argument in this Court is that two consecutive terms of 25 years to life for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. Andrade similarly maintains that the state court decision affirming his sentence is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). AEDPA circumscribes a federal habeas court's review of a state court decision. Section 2254 provides: "(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — *71 "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Ninth Circuit requires federal habeas courts to review the state court decision de novo before applying the AEDPA standard of review. See, e. g., Van Tran v. Lindsey, supra, at 1154-1155; Clark v. Murphy, 317 F.3d 1038, 1044, n. 3 (CA9 2003). We disagree with this approach. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. See Weeks v. Angelone, 528 U.S. 225 (2000). In this case, we do not reach the question whether the state court erred and instead focus solely on whether § 2254(d) forecloses habeas relief on Andrade's Eighth Amendment claim. III A As a threshold matter here, we first decide what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." § 2254(d)(1). Andrade relies upon a series of precedents from this Court — Rummel v. Estelle, supra, Solem v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991) — that he claims clearly establish a principle that his sentence is so grossly disproportionate that it violates the Eighth Amendment. Section 2254(d)(1)'s "clearly established" phrase "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000). In other words, "clearly established Federal law" under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state *72 court renders its decision. See id., at 405, 413; Bell v. Cone, 535 U.S. 685, 698 (2002). In most situations, the task of determining what we have clearly established will be straightforward. The difficulty with Andrade's position, however, is that our precedents in this area have not been a model of clarity. See Harmelin v. Michigan, 501 U. S., at 965 (opinion of SCALIA, J.); id., at 996, 998 (KENNEDY, J., concurring in part and concurring in judgment). Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow. See Ewing v. California, ante, at 20-23. B Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as "clearly established" under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years. Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality. In Solem (the case upon which Andrade relies most heavily), we stated: "It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not." 463 U.S., at 294 (footnote omitted). And in Harmelin, both JUSTICE KENNEDY and JUSTICE SCALIA repeatedly emphasized this lack of clarity: that "Solem was scarcely the expression of clear ... constitutional law," 501 U.S., at 965 (opinion of SCALIA, J.), that in "adher[ing] to the narrow proportionality principle ... our proportionality decisions have not been clear or consistent in all respects," id., at 996 (KENNEDY, J., concurring in part and concurring in judgment), that "we lack clear objective standards to distinguish between sentences for different terms of years," id., at 1001 (KENNEDY, J., concurring in part and concurring in judgment), and that the "precise contours" of the *73 proportionality principle "are unclear," id., at 998 (KENNEDY, J., concurring in part and concurring in judgment). Thus, in this case, the only relevant clearly established law amenable to the "contrary to" or "unreasonable application of" framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the "exceedingly rare" and "extreme" case. Id., at 1001 (KENNEDY, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Solem v. Helm, supra, at 290; Rummel v. Estelle, 445 U. S., at 272. IV The final question is whether the California Court of Appeal's decision affirming Andrade's sentence is "contrary to, or involved an unreasonable application of," this clearly established gross disproportionality principle. First, a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, supra, at 405-406; see also Bell v. Cone, supra, at 694. In terms of length of sentence and availability of parole, severity of the underlying offense, and the impact of recidivism, Andrade's sentence implicates factors relevant in both Rummel and Solem. Because Harmelin and Solem specifically stated that they did not overrule Rummel, it was not contrary to our clearly established law for the California Court of Appeal to turn to Rummel in deciding whether a sentence is grossly disproportionate. See Harmelin, supra, at 998 (KENNEDY, J., concurring in part and concurring in judgment); Solem, supra, at 288, n. 13, 303-304, n. 32. Indeed, Harmelin allows a state court to reasonably rely on Rummel in determining whether a sentence is grossly disproportionate. The California Court of Appeal's decision *74 was therefore not "contrary to" the governing legal principles set forth in our cases. Andrade's sentence also was not materially indistinguishable from the facts in Solem. The facts here fall in between the facts in Rummel and the facts in Solem. Solem involved a sentence of life in prison without the possibility of parole. 463 U.S., at 279. The defendant in Rummel was sentenced to life in prison with the possibility of parole. 445 U.S., at 267. Here, Andrade retains the possibility of parole. Solem acknowledged that Rummel would apply in a "similar factual situation." 463 U.S., at 304, n. 32. And while this case resembles to some degree both Rummel and Solem, it is not materially indistinguishable from either. Cf. Ewing v. California, ante, at 40 (BREYER, J., dissenting) (recognizing a "twilight zone between Solem and Rummel"). Consequently, the state court did not "confron[t] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arriv[e] at a result different from our precedent." Williams v. Taylor, 529 U. S., at 406.[1] *75 Second, "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id., at 413. The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. Id., at 410, 412. The state court's application of clearly established law must be objectively unreasonable. Id., at 409. The Ninth Circuit made an initial error in its "unreasonable application" analysis. In Van Tran v. Lindsey, 212 F. 3d, at 1152-1154, the Ninth Circuit defined "objectively unreasonable" to mean "clear error." These two standards, however, are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness. See Williams v. Taylor, supra, at 410; Bell v. Cone, 535 U. S., at 699. It is not enough that a federal habeas court, in its "independent review of the legal question," is left with a "`firm conviction'" that the state court was "`erroneous.'" 270 F.3d, at 753 (quoting Van Tran v. Lindsey, supra, at 1153-1154). We have held precisely the opposite: "Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that *76 court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U. S., at 411. Rather, that application must be objectively unreasonable. Id., at 409; Bell v. Cone, supra, at 699; Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam). Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced. See, e. g., Williams v. Taylor, supra, at 407 (noting that it is "an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case"). Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle — the "precise contours" of which "are unclear." Harmelin v. Michigan, 501 U. S., at 998 (KENNEDY, J., concurring in part and concurring in judgment). And it was not objectively unreasonable for the California Court of Appeal to conclude that these "contours" permitted an affirmance of Andrade's sentence. Indeed, since Harmelin, several Members of this Court have expressed "uncertainty" regarding the application of the proportionality principle to the California three strikes law. Riggs v. California, 525 U.S. 1114, 1115 (1999) (STEVENS, J., joined by SOUTER and GINSBURG, JJ., respecting denial of certiorari) ("[T]here is some uncertainty about how our cases dealing with the punishment of recidivists should apply"); see also id., at 1116 ("It is thus unclear how, if at all, a defendant's criminal record beyond the requisite two prior `strikes' ... affects the constitutionality of his sentence"); cf. Durden v. California, 531 U.S. 1184 (2001) (SOUTER, J., joined by BREYER, J., dissenting from denial of certiorari) (arguing that the Court should hear the three strikes gross *77 disproportionality issue on direct review because of the "potential for disagreement over application of" AEDPA).[2] The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for § 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison. V The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed. It is so ordered.

This case raises the issue whether the United States Court of Appeals for the Ninth Circuit erred in ruling that the California Court of Appeal's decision affirming Leandro Andrade's two consecutive terms of 25 years to life in prison for a "third strike" conviction is contrary to, or an unreasonable application of, clearly established federal law as determined by this Court within the meaning of 28 U.S. C. 2254(d)(1). I A On November 4, 1995, Leandro Andrade stole five videotapes worth $84. from a Kmart store in Ontario, California. Security personnel detained Andrade as he was leaving the store. On November 18, 1995, Andrade entered a different Kmart store in Montclair, California, and placed four videotapes worth $68.84 in the rear waistband of his pants. Again, security guards apprehended Andrade as he was exiting the premises. Police subsequently arrested Andrade for these crimes. These two incidents were not Andrade's first or only encounters with law enforcement. According to the state probation officer's presentence report, Andrade has been in and out of state and federal prison since 1982. In January 1982, he was convicted of a misdemeanor theft offense and was sentenced to 6 days in jail with 12 months' probation. Andrade was arrested again in November 1982 for multiple counts of first-degree residential burglary. He pleaded guilty to at least three of those counts, and in April of the following year he was sentenced to 120 months in prison. In 1988, Andrade was convicted in federal court of "[t]ransportation of [m]arijuana," App. 24, and was sentenced to eight years in federal prison. In 1990, he was convicted in state court for a misdemeanor petty theft offense and was ordered to serve 180 days in jail. In September 1990, Andrade was convicted again in federal court for the same felony *67 of "[t]ransportation of [m]arijuana," ib and was sentenced to 2,191 days in federal prison. And in 1991, Andrade was arrested for a state parole violation — escape from federal prison. He was paroled from the state penitentiary system in 1993. A state probation officer interviewed Andrade after his arrest in this case. The presentence report notes: "The defendant admitted committing the offense. The defendant further stated he went into the K-Mart Store to steal videos. He took four of them to sell so he could buy heroin. He has been a heroin addict since 1977. He says when he gets out of jail or prison he always does something stupid. He admits his addiction controls his life and he steals for his habit." Because of his 1990 misdemeanor conviction, the State charged Andrade in this case with two counts of petty theft with a prior conviction, in violation of Cal. Penal Code Ann. 666 Under California law, petty theft with a prior conviction is a so-called "wobbler" offense because it is punishable either as a misdemeanor or as a felony. Ibid.; cf. Ewing v. California, ante, at 16-17 (plurality opinion). The decision to prosecute petty theft with a prior conviction as a misdemeanor or as a felony is in the discretion of the prosecutor. See ante, at 17. The trial court also has discretion to reduce the charge to a misdemeanor at the time of sentencing. See ; see also Ewing v. California, ante, at 17. Under California's three strikes law, any felony can constitute the third strike, and thus can subject a defendant to a term of 25 years to life in prison. See Cal. Penal Code Ann. 667(e)(2)(A) ; see also Ewing v. California, ante, at 16. In this case, the prosecutor decided to charge the two counts of theft as felonies rather than misdemeanors. The trial court denied Andrade's motion to reduce the offenses *68 to misdemeanors, both before the jury verdict and again in state habeas proceedings. A jury found Andrade guilty of two counts of petty theft with a prior conviction. According to California law, a jury must also find that a defendant has been convicted of at least two serious or violent felonies that serve as qualifying offenses under the three strikes regime. In this case, the jury made a special finding that Andrade was convicted of three counts of first-degree residential burglary. A conviction for first-degree residential burglary qualifies as a serious or violent felony for the purposes of the three strikes law. Cal. Penal Code Ann. 667.5, 1192.7 ; see also Ewing v. California, ante, at 19. As a consequence, each of Andrade's convictions for theft under Cal. Penal Code Ann. 666 triggered a separate application of the three strikes law. Pursuant to California law, the judge sentenced Andrade to two consecutive terms of 25 years to life in prison. See 667(c)(6), 667(e)(2)(B). The State stated at oral argument that under the decision announced by the Supreme Court of California in — a decision that postdates his conviction and sentence — it remains "available" for Andrade to "file another State habeas corpus petition" arguing that he should serve only one term of 25 years to life in prison because "sentencing courts have a right to dismiss strikes on a count-by-count basis." Tr. of Oral Arg. 24. B On direct appeal in the California Court of Appeal affirmed Andrade's sentence of two consecutive terms of 25 years to life in prison. It rejected Andrade's claim that his sentence violates the constitutional prohibition against cruel and unusual punishment. The court stated that "the proportionality analysis" of "is questionable in light of" App. to Pet. for Cert. 76. The court then applied *69 our decision in where we rejected the defendant's claim that a life sentence was "`grossly disproportionate' to the three felonies that formed the predicate for his sentence." The California Court of Appeal then examined Andrade's claim in light of the facts in Rummel: "Comparing [Andrade's] crimes and criminal history with that of defendant Rummel, we cannot say the sentence of 50 years to life at issue in this case is disproportionate and constitutes cruel and unusual punishment under the United States Constitution." App. to Pet. for Cert. 76-77. After the Supreme Court of California denied discretionary review, Andrade filed a petition for a writ of habeas corpus in Federal District Court. The District Court denied his petition. The Ninth Circuit granted Andrade a certificate of appealability as to his claim that his sentence violated the Eighth Amendment, and subsequently reversed the judgment of the District Court. The Ninth Circuit first noted that it was reviewing Andrade's petition under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Applying its own precedent, the Ninth Circuit held that an unreasonable application of clearly established federal law occurs "when our independent review of the legal question `leaves us with a "firm conviction" that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the [state] court adopted, was erroneous — in other words that clear error occurred.'" ). The court then reviewed our three most recent major precedents in this area — and The Ninth Circuit "follow[ed] the test prescribed by Justice Kennedy in" concluding that "both Rummel and remain good law and are instructive in 's application." * It then noted that the California Court of Appeal compared the facts of Andrade's case to the facts of Rummel, but not The Ninth Circuit concluded that it should grant the writ of habeas corpus because the state court's "disregard for results in an unreasonable application of clearly established Supreme Court law," and "is irreconcilable with" thus constituting "clear error." Judge Sneed dissented in relevant part. He wrote that "[t]he sentence imposed in this case is not one of the `exceedingly rare' terms of imprisonment prohibited by the Eighth Amendment's proscription against cruel and unusual punishment." (quoting ). Under his view, the state court decision upholding Andrade's sentence was thus "not an unreasonable application of clearly established federal law." 2 F.3d, at 772. We granted certiorari, and now reverse. II Andrade's argument in this Court is that two consecutive terms of 25 years to life for stealing approximately $150 in videotapes is grossly disproportionate in violation of the Eighth Amendment. Andrade similarly maintains that the state court decision affirming his sentence is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. 2254(d)(1). AEDPA circumscribes a federal habeas court's review of a state court decision. Section 2254 provides: "(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — *71 "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." The Ninth Circuit requires federal habeas courts to review the state court decision de novo before applying the AEDPA standard of review. See, e. g., Van ; We disagree with this approach. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law. See In this case, we do not reach the question whether the state court erred and instead focus solely on whether 2254(d) forecloses habeas relief on Andrade's Eighth Amendment claim. III A As a threshold matter here, we first decide what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." 2254(d)(1). Andrade relies upon a series of precedents from this Court — and — that he claims clearly establish a principle that his sentence is so grossly disproportionate that it violates the Eighth Amendment. Section 2254(d)(1)'s "clearly established" phrase "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." In other words, "clearly established Federal law" under 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state *72 court renders its decision. See ; In most situations, the task of determining what we have clearly established will be straightforward. The difficulty with Andrade's position, however, is that our precedents in this area have not been a model of clarity. See ; Indeed, in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow. See Ewing v. California, ante, at 20-23. B Through this thicket of Eighth Amendment jurisprudence, one governing legal principle emerges as "clearly established" under 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years. Our cases exhibit a lack of clarity regarding what factors may indicate gross disproportionality. In (the case upon which Andrade relies most heavily), we stated: "It is clear that a 25-year sentence generally is more severe than a 15-year sentence, but in most cases it would be difficult to decide that the former violates the Eighth Amendment while the latter does not." And in both JUSTICE KENNEDY and JUSTICE SCALIA repeatedly emphasized this lack of clarity: that " was scarcely the expression of clear constitutional law," that in "adher[ing] to the narrow proportionality principle our proportionality decisions have not been clear or consistent in all respects," that "we lack clear objective standards to distinguish between sentences for different terms of years," and that the "precise contours" of the *73 proportionality principle "are unclear," Thus, in this case, the only relevant clearly established law amenable to the "contrary to" or "unreasonable application of" framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the "exceedingly rare" and "extreme" case. (internal quotation marks omitted); see also ; IV The final question is whether the California Court of Appeal's decision affirming Andrade's sentence is "contrary to, or involved an unreasonable application of," this clearly established gross disproportionality principle. First, a state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." ; see also In terms of length of sentence and availability of parole, severity of the underlying offense, and the impact of recidivism, Andrade's sentence implicates factors relevant in both Rummel and Because and specifically stated that they did not overrule Rummel, it was not contrary to our clearly established law for the California Court of Appeal to turn to Rummel in deciding whether a sentence is grossly disproportionate. See ; Indeed, allows a state court to reasonably rely on Rummel in determining whether a sentence is grossly disproportionate. The California Court of Appeal's decision *74 was therefore not "contrary to" the governing legal principles set forth in our cases. Andrade's sentence also was not materially indistinguishable from the facts in The facts here fall in between the facts in Rummel and the facts in involved a sentence of life in prison without the possibility of The defendant in Rummel was sentenced to life in prison with the possibility of Here, Andrade retains the possibility of acknowledged that Rummel would apply in a "similar factual situation." n. 32. And while this case resembles to some degree both Rummel and it is not materially indistinguishable from either. Cf. Ewing v. California, ante, at 40 (BREYER, J., dissenting) (recognizing a "twilight zone between and Rummel"). Consequently, the state court did not "confron[t] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arriv[e] at a result different from our precedent."[1] *75 Second, "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous. The state court's application of clearly established law must be objectively unreasonable. The Ninth Circuit made an initial error in its "unreasonable application" analysis. In Van -1154, the Ninth Circuit defined "objectively unreasonable" to mean "clear error." These two standards, however, are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness. See ; It is not enough that a federal habeas court, in its "independent review of the legal question," is left with a "`firm conviction'" that the state court was "`erroneous.'" (quoting Van at ). We have held precisely the opposite: "Under 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court may not issue the writ simply because that *76 court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Rather, that application must be objectively unreasonable. ; ; Section 2254(d)(1) permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced. See, e. g., Here, however, the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within the scope of the proportionality principle — the "precise contours" of which "are unclear." 501 U. S., And it was not objectively unreasonable for the California Court of Appeal to conclude that these "contours" permitted an affirmance of Andrade's sentence. Indeed, since several Members of this Court have expressed "uncertainty" regarding the application of the proportionality principle to the California three strikes law. ("[T]here is some uncertainty about how our cases dealing with the punishment of recidivists should apply"); see also ; cf. (arguing that the Court should hear the three strikes gross *77 disproportionality issue on direct review because of the "potential for disagreement over application of" AEDPA).[2] The gross disproportionality principle reserves a constitutional violation for only the extraordinary case. In applying this principle for 2254(d)(1) purposes, it was not an unreasonable application of our clearly established law for the California Court of Appeal to affirm Andrade's sentence of two consecutive terms of 25 years to life in prison. V The judgment of the United States Court of Appeals for the Ninth Circuit, accordingly, is reversed. It is so ordered.

Justice Souter

dissenting

Lockyer v. Andrade

2003-03-05

https://www.courtlistener.com/opinion/127898/lockyer-v-andrade/

https://www.courtlistener.com/api/rest/v3/clusters/127898/

2002-029

The application of the Eighth Amendment prohibition against cruel and unusual punishment to terms of years is articulated in the "clearly established" principle acknowledged by the Court: a sentence grossly disproportionate to the offense for which it is imposed is unconstitutional. See ante, at 72-73; Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277 (1983); Rummel v. Estelle, 445 U.S. 263 (1980). For the reasons set forth in JUSTICE BREYER'S dissent in Ewing v. California, ante, at 35, which I joined, Andrade's sentence cannot survive Eighth Amendment review. His criminal history is less grave than Ewing's, and yet he received a prison term twice as long for a less serious triggering offense. To be sure, this is a habeas case and a prohibition couched in terms as general as gross *78 disproportion necessarily leaves state courts with much leeway under the statutory criterion that conditions federal relief upon finding that a state court unreasonably applied clear law, see 28 U.S. C. § 2254(d). This case nonetheless presents two independent reasons for holding that the disproportionality review by the state court was not only erroneous but unreasonable, entitling Andrade to relief. I respectfully dissent accordingly. The first reason is the holding in Solem, which happens to be our most recent effort at proportionality review of recidivist sentencing, the authority of which was not left in doubt by Harmelin, see 501 U.S., at 998. Although Solem is important for its instructions about applying objective proportionality analysis, see 463 U.S., at 290-292, the case is controlling here because it established a benchmark in applying the general principle. We specifically held that a sentence of life imprisonment without parole for uttering a $100 "no account" check was disproportionate to the crime, even though the defendant had committed six prior nonviolent felonies. In explaining our proportionality review, we contrasted the result with Rummel's on the ground that the life sentence there had included parole eligibility after 12 years, Solem, 463 U. S., at 297. The facts here are on all fours with those of Solem and point to the same result. Id., at 279-281. Andrade, like the defendant in Solem, was a repeat offender who committed theft of fairly trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person. The respective sentences, too, are strikingly alike. Although Andrade's petty thefts occurred on two separate occasions, his sentence can only be understood as punishment for the total amount he stole. The two thefts were separated by only two weeks; they involved the same victim; they apparently constituted parts of a single, continuing effort to finance drug sales; their seriousness is measured *79 by the dollar value of the things taken; and the government charged both thefts in a single indictment. Cf. United States Sentencing Commission, Guidelines Manual § 3D1.2 (Nov. 2002) (grouping temporally separated counts as one offense for sentencing purposes). The state court accordingly spoke of his punishment collectively as well, carrying a 50-year minimum before parole eligibility, see App. to Pet. for Cert. 77 ("[W]e cannot say the sentence of 50 years to life at issue in this case is disproportionate"), and because Andrade was 37 years old when sentenced, the substantial 50-year period amounts to life without parole. Solem, supra, at 287 (when considering whether a punishment is cruel or unusual "`the question cannot be considered in the abstract'" (quoting Robinson v. California, 370 U.S. 660, 667 (1962))); cf. Rummel, supra, at 280-281 (defendant's eligibility for parole in 12 years informs a proper assessment of his cruel and unusual punishment claim). The results under the Eighth Amendment should therefore be the same in each case. The only ways to reach a different conclusion are to reject the practical equivalence of a life sentence without parole and one with parole eligibility at 87, see ante, at 74 ("Andrade retains the possibility of parole"), or to discount the continuing authority of Solem's example, as the California court did, see App. to Pet. for Cert. 76 ("[T]he current validity of the Solem proportionality analysis is questionable"). The former is unrealistic; an 87-year-old man released after 50 years behind bars will have no real life left, if he survives to be released at all. And the latter, disparaging Solem as a point of reference on Eighth Amendment analysis, is wrong as a matter of law. The second reason that relief is required even under the § 2254(d) unreasonable application standard rests on the alternative way of looking at Andrade's 50-year sentence as two separate 25-year applications of the three-strikes law, and construing the challenge here as going to the second, consecutive 25-year minimum term triggered by a petty *80 theft.[1] To understand why it is revealing to look at the sentence this way, it helps to recall the basic difficulty inherent in proportionality review. We require the comparison of offense and penalty to disclose a truly gross disproportionality before the constitutional limit is passed, in large part because we believe that legislatures are institutionally equipped with better judgment than courts in deciding what penalty is merited by particular behavior. Solem, supra, at 290. In this case, however, a court is substantially aided in its reviewing function by two determinations made by the State itself. The first is the State's adoption of a particular penalogical theory as its principal reason for shutting a three-strikes defendant away for at least 25 years. Although the State alludes in passing to retribution or deterrence (see Brief for Petitioner 16, 24; Reply Brief for Petitioner 10), its only serious justification for the 25-year minimum treats the sentence as a way to incapacitate a given defendant from further crime; the underlying theory is the need to protect the public from a danger demonstrated by the prior record of violent and serious crime. See Brief for Petitioner 17 ("significant danger to society such that [defendant] must be imprisoned for no less than twenty-five years to life"); id., at 21 ("statute carefully tailored to address ... defendants that pose the greatest danger"); id., at 23 ("isolating such a defendant for a substantial period of time"); Reply Brief for Petitioner 11 ("If Andrade's reasoning were accepted, however, California would be precluded from incapacitating him"). See also Rummel, 445 U. S., at 284 ("purpose of a recidivist *81 statute ... [is] to segregate").[2] The State, in other words has not chosen 25 to life because of the inherent moral or social reprehensibility of the triggering offense in isolation; the triggering offense is treated so seriously, rather, because of its confirmation of the defendant's danger to society and the need to counter his threat with incapacitation. As to the length of incapacitation, the State has made a second helpful determination, that the public risk or danger posed by someone with the specified predicate record is generally addressed by incapacitation for 25 years before parole eligibility. Cal. Penal Code Ann. § 667(e)(2)(A)(ii) (West 1999). The three-strikes law, in sum, responds to a condition of the defendant shown by his prior felony record, his danger to society, and it reflects a judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant exhibiting such a condition commits another felony. Whether or not one accepts the State's choice of penalogical policy as constitutionally sound, that policy cannot reasonably *82 justify the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense. Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes; his dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation. Since the defendant's condition has not changed between the two closely related thefts, the incapacitation penalty is not open to the simple arithmetic of multiplying the punishment by two, without resulting in gross disproportion even under the State's chosen benchmark. Far from attempting a novel penal theory to justify doubling the sentence, the California Court of Appeal offered no comment at all as to the particular penal theory supporting such a punishment. App. to Pet. for Cert. 76-79. Perhaps even more tellingly, no one could seriously argue that the second theft of videotapes provided any basis to think that Andrade would be so dangerous after 25 years, the date on which the consecutive sentence would begin to run, as to require at least 25 years more. I know of no jurisdiction that would add 25 years of imprisonment simply to reflect the fact that the two temporally related thefts took place on two separate occasions, and I am not surprised that California has found no such case, not even under its three-strikes law. Tr. of Oral Arg. 52 (State's counsel acknowledging "I have no reference to any 50-year-to-life sentences based on two convictions"). In sum, the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ. The argument is irrational, and the state court's acceptance of it in response to a facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of § 2254(d). *83 This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized when it specifically provided that a prosecutor may move to dismiss or strike a prior felony conviction "in the furtherance of justice." Cal. Penal Code Ann. § 667(f)(2) (West 1999). In this case, the statutory safeguard failed, and the state court was left to ensure that the Eighth Amendment prohibition on grossly disproportionate sentences was met. If Andrade's sentence is not grossly disproportionate, the principle has no meaning. The California court's holding was an unreasonable application of clearly established precedent.

The application of the Eighth Amendment prohibition against cruel and unusual punishment to terms of years is articulated in the "clearly established" principle acknowledged by the Court: a sentence grossly disproportionate to the offense for which it is imposed is unconstitutional. See ante, at 72-73; ; ; For the reasons set forth in JUSTICE BREYER'S dissent in Ewing v. California, ante, at 35, which I joined, Andrade's sentence cannot survive Eighth Amendment review. His criminal history is less grave than Ewing's, and yet he received a prison term twice as long for a less serious triggering offense. To be sure, this is a habeas case and a prohibition couched in terms as general as gross *78 disproportion necessarily leaves state courts with much leeway under the statutory criterion that conditions federal relief upon finding that a state court unreasonably applied clear law, see 28 U.S. C. 2254(d). This case nonetheless presents two independent reasons for holding that the disproportionality review by the state court was not only erroneous but unreasonable, entitling Andrade to relief. I respectfully dissent accordingly. The first reason is the holding in which happens to be our most recent effort at proportionality review of recidivist sentencing, the authority of which was not left in doubt by Harmelin, see Although is important for its instructions about applying objective proportionality analysis, see -292, the case is controlling here because it established a benchmark in applying the general principle. We specifically held that a sentence of life imprisonment without parole for uttering a $100 "no account" check was disproportionate to the crime, even though the defendant had committed six prior nonviolent felonies. In explaining our proportionality review, we contrasted the result with 's on the ground that the life sentence there had included parole eligibility after 12 years, The facts here are on all fours with those of and point to the same result. Andrade, like the defendant in was a repeat offender who committed theft of fairly trifling value, some $150, and their criminal records are comparable, including burglary (though Andrade's were residential), with no violent crimes or crimes against the person. The respective sentences, too, are strikingly alike. Although Andrade's petty thefts occurred on two separate occasions, his sentence can only be understood as punishment for the total amount he stole. The two thefts were separated by only two weeks; they involved the same victim; they apparently constituted parts of a single, continuing effort to finance drug sales; their seriousness is measured *79 by the dollar value of the things taken; and the government charged both thefts in a single indictment. Cf. United States Sentencing Commission, Guidelines Manual 3D1.2 (Nov. 2002) (grouping temporally separated counts as one offense for sentencing purposes). The state court accordingly spoke of his punishment collectively as well, carrying a 50-year minimum before parole eligibility, see App. to Pet. for Cert. 77 ("[W]e cannot say the sentence of 50 years to life at issue in this case is disproportionate"), and because Andrade was 37 years old when sentenced, the substantial 50-year period amounts to life without parole. )); cf. The results under the Eighth Amendment should therefore be the same in each case. The only ways to reach a different conclusion are to reject the practical equivalence of a life sentence without parole and one with parole eligibility at 87, see ante, at 74 ("Andrade retains the possibility of parole"), or to discount the continuing authority of 's example, as the California court did, see App. to Pet. for Cert. 76 ("[T]he current validity of the proportionality analysis is questionable"). The former is unrealistic; an 87-year-old man released after 50 years behind bars will have no real life left, if he survives to be released at all. And the latter, disparaging as a point of reference on Eighth Amendment analysis, is wrong as a matter of law. The second reason that relief is required even under the 2254(d) unreasonable application standard rests on the alternative way of looking at Andrade's 50-year sentence as two separate 25-year applications of the three-strikes law, and construing the challenge here as going to the second, consecutive 25-year minimum term triggered by a petty *80 theft.[1] To understand why it is revealing to look at the sentence this way, it helps to recall the basic difficulty inherent in proportionality review. We require the comparison of offense and penalty to disclose a truly gross disproportionality before the constitutional limit is passed, in large part because we believe that legislatures are institutionally equipped with better judgment than courts in deciding what penalty is merited by particular behavior. In this case, however, a court is substantially aided in its reviewing function by two determinations made by the State itself. The first is the State's adoption of a particular penalogical theory as its principal reason for shutting a three-strikes defendant away for at least 25 years. Although the State alludes in passing to retribution or deterrence (see Brief for Petitioner 16, 24; Reply Brief for Petitioner 10), its only serious justification for the 25-year minimum treats the sentence as a way to incapacitate a given defendant from further crime; the underlying theory is the need to protect the public from a danger demonstrated by the prior record of violent and serious crime. See Brief for Petitioner 17 ("significant danger to society such that [defendant] must be imprisoned for no less than twenty-five years to life"); ; ; Reply Brief for Petitioner 11 ("If Andrade's reasoning were accepted, however, California would be precluded from incapacitating him"). See also[2] The State, in other words has not chosen 25 to life because of the inherent moral or social reprehensibility of the triggering offense in isolation; the triggering offense is treated so seriously, rather, because of its confirmation of the defendant's danger to society and the need to counter his threat with incapacitation. As to the length of incapacitation, the State has made a second helpful determination, that the public risk or danger posed by someone with the specified predicate record is generally addressed by incapacitation for 25 years before parole eligibility. Cal. Penal Code Ann. (e)(2)(A)(ii) (West 1999). The three-strikes law, in sum, responds to a condition of the defendant shown by his prior felony record, his danger to society, and it reflects a judgment that 25 years of incapacitation prior to parole eligibility is appropriate when a defendant exhibiting such a condition commits another felony. Whether or not one accepts the State's choice of penalogical policy as constitutionally sound, that policy cannot reasonably *82 justify the imposition of a consecutive 25-year minimum for a second minor felony committed soon after the first triggering offense. Andrade did not somehow become twice as dangerous to society when he stole the second handful of videotapes; his dangerousness may justify treating one minor felony as serious and warranting long incapacitation, but a second such felony does not disclose greater danger warranting substantially longer incapacitation. Since the defendant's condition has not changed between the two closely related thefts, the incapacitation penalty is not open to the simple arithmetic of multiplying the punishment by two, without resulting in gross disproportion even under the State's chosen benchmark. Far from attempting a novel penal theory to justify doubling the sentence, the California Court of Appeal offered no comment at all as to the particular penal theory supporting such a punishment. App. to Pet. for Cert. 76-79. Perhaps even more tellingly, no one could seriously argue that the second theft of videotapes provided any basis to think that Andrade would be so dangerous after 25 years, the date on which the consecutive sentence would begin to run, as to require at least 25 years more. I know of no jurisdiction that would add 25 years of imprisonment simply to reflect the fact that the two temporally related thefts took place on two separate occasions, and I am not surprised that California has found no such case, not even under its three-strikes law. Tr. of Oral Arg. 52 (State's counsel acknowledging "I have no reference to any 50-year-to-life sentences based on two convictions"). In sum, the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ. The argument is irrational, and the state court's acceptance of it in response to a facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of 2254(d). *83 This is the rare sentence of demonstrable gross disproportionality, as the California Legislature may well have recognized when it specifically provided that a prosecutor may move to dismiss or strike a prior felony conviction "in the furtherance of justice." Cal. Penal Code Ann. (f)(2) (West 1999). In this case, the statutory safeguard failed, and the state court was left to ensure that the Eighth Amendment prohibition on grossly disproportionate sentences was met. If Andrade's sentence is not grossly disproportionate, the principle has no meaning. The California court's holding was an unreasonable application of clearly established precedent.

Justice Stevens

majority

Gonzales v. Raich

2005-06-06

https://www.courtlistener.com/opinion/799995/gonzales-v-raich/

https://www.courtlistener.com/api/rest/v3/clusters/799995/

2004-054

California is one of at least nine States that authorize the use of marijuana for medicinal purposes.[1] The question presented in this case is whether the power vested in Congress by Article I, § 8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. I California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana,[2] and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.[3] The proposition was designed *6 to ensure that "seriously ill" residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need.[4] The Act creates an exemption from criminal prosecution for physicians,[5] as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician.[6] A "primary caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.[7] Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use *7 Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal. Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers also process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption. On August 15, 2002, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 84 Stat. 1242, 21 U.S. C. § 801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts *8 to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity. The District Court denied respondents' motion for a preliminary injunction. Raich v. Ashcroft, 248 F. Supp. 2d 918 (ND Cal. 2003). Although the court found that the federal enforcement interests "wane[d]" when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. Id., at 931. A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction.[8]Raich v. Ashcroft, 352 F.3d 1222 (2003). The court found that respondents had "demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." Id., at 1227. The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and distinct class of activities" at issue in this case: "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." Id., at 1228. The *9 court found the latter class of activities "different in kind from drug trafficking" because interposing a physician's recommendation raises different health and safety concerns, and because "this limited use is clearly distinct from the broader illicit drug market—as well as any broader commercial market for medicinal marijuana—insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce." Ibid. The majority placed heavy reliance on our decisions in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under Lopez and Morrison; moreover, he thought it "simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in Wickard v. Filburn." 352 F. 3d, at 1235 (opinion of Beam, J.) (citation omitted). The obvious importance of the case prompted our grant of certiorari. 542 U.S. 936 (2004). The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. *10 II Shortly after taking office in 1969, President Nixon declared a national "war on drugs."[9] As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs.[10] That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236. This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce.[11] Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer.[12] For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, 38 Stat. 785 (repealed 1970). The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against *11 parties so registered, and by regulating the issuance of prescriptions.[13] Marijuana itself was not significantly regulated by the Federal Government until 1937 when accounts of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act, 50 Stat. 551 (repealed 1970).[14] Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands.[15] Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements.[16] Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law.[17] Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade. Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated *12 this policy shift. First, in Leary v. United States, 395 U.S. 6 (1969), this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice.[18] Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.[19] Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.[20] Congress was particularly concerned with the *13 need to prevent the diversion of drugs from legitimate to illicit channels.[21] To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S. C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. *14 §§ 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. §§ 821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S. C. § 812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW "that marihuana be retained within schedule I at least until the completion of certain studies now underway."[22] Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). These three factors, in varying gradations, are also used to categorize drugs in the other four schedules. For example, Schedule II substances also have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. § 812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. §§ 823(f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 490 (2001). The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between *15 schedules. § 811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.[23] III Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, 38. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder has *16 evolved over time.[24] The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.[25] For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.[26] Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U.S. C. § 2 et seq.[27] Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate *17 commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand. Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. See, e. g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U.S. 111, 128-129 (1942). As we stated in Wickard, "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." Id., at 125. We have never required Congress to legislate with scientific exactitude. When Congress decides that the "`total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154-155 (quoting Westfall v. United States, 274 U.S. 256, 259 (1927) ("`[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so'")). In this vein, we have reiterated that when "`a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" E. g., Lopez, 514 U. S., at 558 (emphasis deleted) (quoting Maryland v. Wirtz, 392 U.S. 183, 196, n. 27 (1968)). Our decision in Wickard, 317 U.S. 111, is of particular relevance. In Wickard, we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 1938, 52 Stat. 31, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn *18 argued that even though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize "federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm." Wickard, 317 U. S., at 118. Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote: "The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." Id., at 127-128. Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and Wickard are striking. Like the farmer in Wickard, respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.[28] Just as the Agricultural Adjustment Act was designed "to *19 control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses ..." and consequently control the market price, id., at 115, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. 20-21, supra. In Wickard, we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U. S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.[29] *20 Nonetheless, respondents suggest that Wickard differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) Wickard involved a "quintessential economic activity"—a commercial farm—whereas respondents do not sell marijuana; and (3) the Wickard record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning. The fact that Filburn's own impact on the market was "trivial by itself" was not a sufficient reason for removing him from the scope of federal regulation. 317 U. S., at 127. That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Filburn was indeed a commercial farmer, the activity he was engaged in—the cultivation of wheat for home consumption—was not treated by the Court as part of his commercial farming operation.[30] And while it is true that the record in the Wickard case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect. Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. See n. 20, supra. The *21 submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 1938 statute.[31] Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see Lopez, 514 U. S., at 562; Perez, 402 U. S., at 156, absent a special concern such as the protection of free speech, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664-668 (1994) (plurality opinion). While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress' authority to legislate.[32] *22 In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. Lopez, 514 U. S., at 557; see also Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-280 (1981); Perez, 402 U. S., at 155-156; Katzenbach v. McClung, 379 U.S. 294, 299-301 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253 (1964). Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S. C. § 801(5), and concerns about diversion into illicit channels,[33] we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in Wickard, when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce ... among the several States." U. S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. *23 IV To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those two cases, of course, are Lopez, 514 U.S. 549, and Morrison, 529 U.S. 598. As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power `to excise, as trivial, individual instances' of the class." Perez, 402 U. S., at 154 (emphasis deleted) (quoting Wirtz, 392 U. S., at 193); see also Hodel, 452 U. S., at 308. At issue in Lopez, 514 U.S. 549, was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. 104 Stat. 4844-4845, 18 U.S. C. § 922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute invalid. We explained: *24 "Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." 514 U. S., at 561. The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat. 1242-1284, was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances." Most of those substances—those listed in Schedules II through V—"have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 U.S. C. § 801(1). The regulatory scheme is designed to foster the beneficial use of those medications, to prevent their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, except as a part of a strictly controlled research project. While the statute provided for the periodic updating of the five schedules, Congress itself made the initial classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. 84 Stat. 1248. Marijuana was listed as the 10th item in the 3d subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut *25 unless the intrastate activity were regulated." Lopez, 514 U. S., at 561.[34] Our opinion in Lopez casts no doubt on the validity of such a program. Nor does this Court's holding in Morrison, 529 U.S. 598. The Violence Against Women Act of 1994, 108 Stat. 1902, created a federal civil remedy for the victims of gender-motivated crimes of violence. 42 U.S. C. § 13981. The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in Lopez, it did not regulate economic activity. We concluded that "the non-economic, criminal nature of the conduct at issue was central to our decision" in Lopez, and that our prior cases had identified a clear pattern of analysis: "`Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'"[35]Morrison, 529 U. S., at 610. Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International *26 Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.[36] Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in Morrison casts no doubt on its constitutionality. The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as "the intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law." 352 F. 3d, at 1229. The court characterized this class as "different in kind from drug trafficking." Id., at 1228. The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress' contrary policy judgment, i. e., its decision to include this narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court *27 of Appeals was an essential part of the larger regulatory scheme. First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." 21 U.S. C. § 801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,[37] the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See *28 §§ 821-830; 21 CFR § 1301 et seq. (2004). Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United States v. Rutherford, 442 U.S. 544 (1979). Accordingly, the mere fact that marijuana—like virtually every other controlled substance regulated by the CSA—is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. Nor can it serve as an "objective marke[r]" or "objective facto[r]" to arbitrarily narrow the relevant class as the dissenters suggest, post, at 47 (opinion of O'CONNOR, J.); post, at 68 (opinion of THOMAS, J.). More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "`outer limits' of Congress' Commerce Clause authority," post, at 42 (opinion of O'CONNOR, J.), it must also be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is also beyond those "`outer limits,'" whether or not a State elects to authorize or even regulate such use. JUSTICE THOMAS' separate dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the "`outer limits'" of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but "visible to the *29 naked eye," Lopez, 514 U. S., at 563, under any commonsense appraisal of the probable consequences of such an open-ended exemption. Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is "`superior to that of the States to provide for the welfare or necessities of their inhabitants,'" however legitimate or dire those necessities may be. Wirtz, 392 U. S., at 196 (quoting Sanitary Dist. of Chicago v. United States, 266 U.S. 405, 426 (1925)). See also 392 U. S., at 195-196; Wickard, 317 U. S., at 124 ("`[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress'"). Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e. g., Morrison, 529 U. S., at 661-662 (BREYER, J., dissenting) (noting that 38 States requested federal intervention), so too state action cannot circumscribe Congress' plenary commerce power. See United States v. Darby, 312 U.S. 100, 114 (1941) ("That power can neither be enlarged nor diminished by the exercise or non-exercise of state power").[38] *30 Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. 38, supra, at 26 and this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes, post, at 56 (opinion of O'CONNOR, J.), it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to *31 recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A) (West Supp. 2005), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.[39] And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so.[40] The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.[41] The likelihood that all such production will *32 promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.[42] Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.[43] Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact JUSTICE O'CONNOR's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 56, 55, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial. So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." 352 F. 3d, at 1229. Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically *33 rather than sold on the open market is not subject to federal regulation. Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in Wickard v. Filburn and the later cases endorsing its reasoning foreclose that claim. V Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

California is one of at least nine States that authorize the use of marijuana for medicinal purposes.[1] The question presented in this case is whether the power vested in Congress by Article I, 8, of the Constitution "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States" includes the power to prohibit the local cultivation and use of marijuana in compliance with California law. I California has been a pioneer in the regulation of marijuana. In 1913, California was one of the first States to prohibit the sale and possession of marijuana,[2] and at the end of the century, California became the first State to authorize limited use of the drug for medicinal purposes. In 1996, California voters passed Proposition 215, now codified as the Compassionate Use Act of 1996.[3] The proposition was designed *6 to ensure that "seriously ill" residents of the State have access to marijuana for medical purposes, and to encourage Federal and State Governments to take steps toward ensuring the safe and affordable distribution of the drug to patients in need.[4] The Act creates an exemption from criminal prosecution for physicians,[5] as well as for patients and primary caregivers who possess or cultivate marijuana for medicinal purposes with the recommendation or approval of a physician.[6] A "primary caregiver" is a person who has consistently assumed responsibility for the housing, health, or safety of the patient.[7] Respondents Angel Raich and Diane Monson are California residents who suffer from a variety of serious medical conditions and have sought to avail themselves of medical marijuana pursuant to the terms of the Compassionate Use *7 Act. They are being treated by licensed, board-certified family practitioners, who have concluded, after prescribing a host of conventional medicines to treat respondents' conditions and to alleviate their associated symptoms, that marijuana is the only drug available that provides effective treatment. Both women have been using marijuana as a medication for several years pursuant to their doctors' recommendation, and both rely heavily on cannabis to function on a daily basis. Indeed, Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal. Respondent Monson cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer. Respondent Raich, by contrast, is unable to cultivate her own, and thus relies on two caregivers, litigating as "John Does," to provide her with locally grown marijuana at no charge. These caregivers process the cannabis into hashish or keif, and Raich herself processes some of the marijuana into oils, balms, and foods for consumption. On August 15, 02, county deputy sheriffs and agents from the federal Drug Enforcement Administration (DEA) came to Monson's home. After a thorough investigation, the county officials concluded that her use of marijuana was entirely lawful as a matter of California law. Nevertheless, after a 3-hour standoff, the federal agents seized and destroyed all six of her cannabis plants. Respondents thereafter brought this action against the Attorney General of the United States and the head of the DEA seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA), 21 U.S. C. 801 et seq., to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. In their complaint and supporting affidavits, Raich and Monson described the severity of their afflictions, their repeatedly futile attempts *8 to obtain relief with conventional medications, and the opinions of their doctors concerning their need to use marijuana. Respondents claimed that enforcing the CSA against them would violate the Commerce Clause, the Due Process Clause of the Fifth Amendment, the Ninth and Tenth Amendments of the Constitution, and the doctrine of medical necessity. The District Court denied respondents' motion for a preliminary injunction. Although the court found that the federal enforcement interests "wane[d]" when compared to the harm that California residents would suffer if denied access to medically necessary marijuana, it concluded that respondents could not demonstrate a likelihood of success on the merits of their legal claims. A divided panel of the Court of Appeals for the Ninth Circuit reversed and ordered the District Court to enter a preliminary injunction.[8], The court found that respondents had "demonstrated a strong likelihood of success on their claim that, as applied to them, the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." The Court of Appeals distinguished prior Circuit cases upholding the CSA in the face of Commerce Clause challenges by focusing on what it deemed to be the "separate and distinct class of activities" at issue in this case: "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law." The *9 court found the latter class of activities "different in kind from drug trafficking" because interposing a physician's recommendation raises different health and safety concerns, and because "this limited use is clearly distinct from the broader illicit drug market—as well as any broader commercial market for medicinal marijuana—insofar as the medicinal marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce." The majority placed heavy reliance on our decisions in United and United as interpreted by recent Circuit precedent, to hold that this separate class of purely local activities was beyond the reach of federal power. In contrast, the dissenting judge concluded that the CSA, as applied to respondents, was clearly valid under and ; moreover, he thought it "simply impossible to distinguish the relevant conduct surrounding the cultivation and use of the marijuana crop at issue in this case from the cultivation and use of the wheat crop that affected interstate commerce in" (citation omitted). The obvious importance of the case prompted our grant of certiorari. The case is made difficult by respondents' strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress' power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case. We accordingly vacate the judgment of the Court of Appeals. *10 II Shortly after taking office in 1969, President Nixon declared a national "war on drugs."[9] As the first campaign of that war, Congress set out to enact legislation that would consolidate various drug laws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs.[10] That effort culminated in the passage of the Comprehensive Drug Abuse Prevention and Control Act of 1970, This was not, however, Congress' first attempt to regulate the national market in drugs. Rather, as early as 1906 Congress enacted federal legislation imposing labeling regulations on medications and prohibiting the manufacture or shipment of any adulterated or misbranded drug traveling in interstate commerce.[11] Aside from these labeling restrictions, most domestic drug regulations prior to 1970 generally came in the guise of revenue laws, with the Department of the Treasury serving as the Federal Government's primary enforcer.[12] For example, the primary drug control law, before being repealed by the passage of the CSA, was the Harrison Narcotics Act of 1914, The Harrison Act sought to exert control over the possession and sale of narcotics, specifically cocaine and opiates, by requiring producers, distributors, and purchasers to register with the Federal Government, by assessing taxes against *11 parties so registered, and by regulating the issuance of prescriptions.[13] Marijuana itself was not significantly regulated by the Federal Government until 19 when accounts of marijuana's addictive qualities and physiological effects, paired with dissatisfaction with enforcement efforts at state and local levels, prompted Congress to pass the Marihuana Tax Act,[14] Like the Harrison Act, the Marihuana Tax Act did not outlaw the possession or sale of marijuana outright. Rather, it imposed registration and reporting requirements for all individuals importing, producing, selling, or dealing in marijuana, and required the payment of annual taxes in addition to transfer taxes whenever the drug changed hands.[15] Moreover, doctors wishing to prescribe marijuana for medical purposes were required to comply with rather burdensome administrative requirements.[16] Noncompliance exposed traffickers to severe federal penalties, whereas compliance would often subject them to prosecution under state law.[17] Thus, while the Marihuana Tax Act did not declare the drug illegal per se, the onerous administrative requirements, the prohibitively expensive taxes, and the risks attendant on compliance practically curtailed the marijuana trade. Then in 1970, after declaration of the national "war on drugs," federal drug policy underwent a significant transformation. A number of noteworthy events precipitated *12 this policy shift. First, in this Court held certain provisions of the Marihuana Tax Act and other narcotics legislation unconstitutional. Second, at the end of his term, President Johnson fundamentally reorganized the federal drug control agencies. The Bureau of Narcotics, then housed in the Department of Treasury, merged with the Bureau of Drug Abuse Control, then housed in the Department of Health, Education, and Welfare (HEW), to create the Bureau of Narcotics and Dangerous Drugs, currently housed in the Department of Justice.[18] Finally, prompted by a perceived need to consolidate the growing number of piecemeal drug laws and to enhance federal drug enforcement powers, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act.[19] Title II of that Act, the CSA, repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs. The main objectives of the CSA were to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances.[] Congress was particularly concerned with the *13 need to prevent the diversion of drugs from legitimate to illicit channels.[21] To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U.S. C. 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. *14 811, 812. Each schedule is associated with a distinct set of controls regarding the manufacture, distribution, and use of the substances listed therein. 821-830. The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. ; 21 CFR 1301 et seq. In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U.S. C. 812(c). This preliminary classification was based, in part, on the recommendation of the Assistant Secretary of HEW "that marihuana be retained within schedule I at least until the completion of certain studies now underway."[22] Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. 812(b)(1). These three factors, in varying gradations, are used to categorize drugs in the other four schedules. For example, Schedule II substances have a high potential for abuse which may lead to severe psychological or physical dependence, but unlike Schedule I drugs, they have a currently accepted medical use. 812(b)(2). By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration pre-approved research study. 823(f), 841(a)(1), 844(a); see United The CSA provides for the periodic updating of schedules and delegates authority to the Attorney General, after consultation with the Secretary of Health and Human Services, to add, remove, or transfer substances to, from, or between *15 schedules. 811. Despite considerable efforts to reschedule marijuana, it remains a Schedule I drug.[23] III Respondents in this case do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control Act, was well within Congress' commerce power. Brief for Respondents 22, Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority. Rather, respondents' challenge is actually quite limited; they argue that the CSA's categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress' authority under the Commerce Clause. In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United our understanding of the reach of the Commerce Clause, as well as Congress' assertion of authority thereunder has *16 evolved over time.[24] The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation.[25] For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible.[26] Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress "ushered in a new era of federal regulation under the commerce power," beginning with the enactment of the Interstate Commerce Act in 1887, and the Sherman Antitrust Act in 1890, as amended, 15 U.S. C. 2 et seq.[27] Cases decided during that "new era," which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate *17 commerce. Third, Congress has the power to regulate activities that substantially affect interstate commerce. ; Only the third category is implicated in the case at hand. Our case law firmly establishes Congress' power to regulate purely local activities that are part of an economic "class of activities" that have a substantial effect on interstate commerce. See, e. g., ; As we stated in "even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce." We have never required Congress to legislate with scientific exactitude. When Congress decides that the "`total incidence'" of a practice poses a threat to a national market, it may regulate the entire class. See -155 ). In this vein, we have reiterated that when "`a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.'" E. g., ). Our decision in is of particular relevance. In we upheld the application of regulations promulgated under the Agricultural Adjustment Act of 19, which were designed to control the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and consequent abnormally low prices. The regulations established an allotment of 11.1 acres for Filburn's 1941 wheat crop, but he sowed 23 acres, intending to use the excess by consuming it on his own farm. Filburn *18 argued that even though we had sustained Congress' power to regulate the production of goods for commerce, that power did not authorize "federal regulation [of] production not intended in any part for commerce but wholly for consumption on the farm." Justice Jackson's opinion for a unanimous Court rejected this submission. He wrote: "The effect of the statute before us is to restrict the amount which may be produced for market and the extent as well to which one may forestall resort to the market by producing to meet his own needs. That appellee's own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, his contribution, taken together with that of many others similarly situated, is far from trivial." thus establishes that Congress can regulate purely intrastate activity that is not itself "commercial," in that it is not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The similarities between this case and are striking. Like the farmer in respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market.[28] Just as the Agricultural Adjustment Act was designed "to *19 control the volume [of wheat] moving in interstate and foreign commerce in order to avoid surpluses" and consequently control the market price, a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets. See nn. In we had no difficulty concluding that Congress had a rational basis for believing that, when viewed in the aggregate, leaving home-consumed wheat outside the regulatory scheme would have a substantial influence on price and market conditions. Here too, Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would similarly affect price and market conditions. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 19 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.[29] * Nonetheless, respondents suggest that differs from this case in three respects: (1) the Agricultural Adjustment Act, unlike the CSA, exempted small farming operations; (2) involved a "quintessential economic activity"—a commercial farm—whereas respondents do not sell marijuana; and (3) the record made it clear that the aggregate production of wheat for use on farms had a significant impact on market prices. Those differences, though factually accurate, do not diminish the precedential force of this Court's reasoning. The fact that Filburn's own impact on the market was "trivial by itself" was not a sufficient reason for removing him from the scope of federal That the Secretary of Agriculture elected to exempt even smaller farms from regulation does not speak to his power to regulate all those whose aggregated production was significant, nor did that fact play any role in the Court's analysis. Moreover, even though Filburn was indeed a commercial farmer, the activity he was engaged in—the cultivation of wheat for home consumption—was not treated by the Court as part of his commercial farming operation.[30] And while it is true that the record in the case itself established the causal connection between the production for local use and the national market, we have before us findings by Congress to the same effect. Findings in the introductory sections of the CSA explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA. See n. The *21 submissions of the parties and the numerous amici all seem to agree that the national, and international, market for marijuana has dimensions that are fully comparable to those defining the class of activities regulated by the Secretary pursuant to the 19 statute.[31] Respondents nonetheless insist that the CSA cannot be constitutionally applied to their activities because Congress did not make a specific finding that the intrastate cultivation and possession of marijuana for medical purposes based on the recommendation of a physician would substantially affect the larger interstate marijuana market. Be that as it may, we have never required Congress to make particularized findings in order to legislate, see ; absent a special concern such as the protection of free speech, see, e. g., Turner Broadcasting System, While congressional findings are certainly helpful in reviewing the substance of a congressional statutory scheme, particularly when the connection to commerce is not self-evident, and while we will consider congressional findings in our analysis when they are available, the absence of particularized findings does not call into question Congress' authority to legislate.[32] *22 In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a "rational basis" exists for so concluding. ; see ; -156; 9 U.S. 294, ; Heart of Atlanta Motel, 9 U.S. 241, Given the enforcement difficulties that attend distinguishing between marijuana cultivated locally and marijuana grown elsewhere, 21 U.S. C. 801(5), and concerns about diversion into illicit channels,[33] we have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA. Thus, as in when it enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to "make all Laws which shall be necessary and proper" to "regulate Commerce among the several States." U. S. Const., Art. I, 8. That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme. *23 IV To support their contrary submission, respondents rely heavily on two of our more recent Commerce Clause cases. In their myopic focus, they overlook the larger context of modern-era Commerce Clause jurisprudence preserved by those cases. Moreover, even in the narrow prism of respondents' creation, they read those cases far too broadly. Those two cases, of course, are and As an initial matter, the statutory challenges at issue in those cases were markedly different from the challenge respondents pursue in the case at hand. Here, respondents ask us to excise individual applications of a concededly valid statutory scheme. In contrast, in both and the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety. This distinction is pivotal for we have often reiterated that "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power `to excise, as trivial, individual instances' of the class." (quoting ); see At issue in was the validity of the Gun-Free School Zones Act of 1990, which was a brief, single-subject statute making it a crime for an individual to possess a gun in a school zone. -4845, 18 U.S. C. 922(q)(1)(A). The Act did not regulate any economic activity and did not contain any requirement that the possession of a gun have any connection to past interstate activity or a predictable impact on future commercial activity. Distinguishing our earlier cases holding that comprehensive regulatory statutes may be validly applied to local conduct that does not, when viewed in isolation, have a significant impact on interstate commerce, we held the statute invalid. We explained: *24 "Section 922(q) is a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." The statutory scheme that the Government is defending in this litigation is at the opposite end of the regulatory spectrum. As explained above, the CSA, enacted in 1970 as part of the Comprehensive Drug Abuse Prevention and Control Act, -1284, was a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of "controlled substances." Most of those substances—those listed in Schedules II through V—"have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people." 21 U.S. C. 801(1). The regulatory scheme is designed to foster the beneficial use of those medications, to prevent their misuse, and to prohibit entirely the possession or use of substances listed in Schedule I, except as a part of a strictly controlled research project. While the statute provided for the periodic updating of the five schedules, Congress itself made the initial classifications. It identified 42 opiates, 22 opium derivatives, and 17 hallucinogenic substances as Schedule I drugs. Marijuana was listed as the 10th item in the 3d subcategory. That classification, unlike the discrete prohibition established by the Gun-Free School Zones Act of 1990, was merely one of many "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut *25 unless the intrastate activity were regulated."[34] Our opinion in casts no doubt on the validity of such a program. Nor does this Court's holding in The Violence Against Women Act of 1994, created a federal civil remedy for the victims of gender-motivated crimes of violence. 42 U.S. C. 13981. The remedy was enforceable in both state and federal courts, and generally depended on proof of the violation of a state law. Despite congressional findings that such crimes had an adverse impact on interstate commerce, we held the statute unconstitutional because, like the statute in it did not regulate economic activity. We concluded that "the non-economic, criminal nature of the conduct at issue was central to our decision" in and that our prior cases had identified a clear pattern of analysis: "`Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained.'"[35], Unlike those at issue in and the activities regulated by the CSA are quintessentially economic. "Economics" refers to "the production, distribution, and consumption of commodities." Webster's Third New International *26 Dictionary 7 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.[36] Such prohibitions include specific decisions requiring that a drug be withdrawn from the market as a result of the failure to comply with regulatory requirements as well as decisions excluding Schedule I drugs entirely from the market. Because the CSA is a statute that directly regulates economic, commercial activity, our opinion in casts no doubt on its constitutionality. The Court of Appeals was able to conclude otherwise only by isolating a "separate and distinct" class of activities that it held to be beyond the reach of federal power, defined as "the intrastate, non-commercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician and in accordance with state law." The court characterized this class as "different in kind from drug trafficking." The differences between the members of a class so defined and the principal traffickers in Schedule I substances might be sufficient to justify a policy decision exempting the narrower class from the coverage of the CSA. The question, however, is whether Congress' contrary policy judgment, i. e., its decision to include this narrower "class of activities" within the larger regulatory scheme, was constitutionally deficient. We have no difficulty concluding that Congress acted rationally in determining that none of the characteristics making up the purported class, whether viewed individually or in the aggregate, compelled an exemption from the CSA; rather, the subdivided class of activities defined by the Court *27 of Appeals was an essential part of the larger regulatory scheme. First, the fact that marijuana is used "for personal medical purposes on the advice of a physician" cannot itself serve as a distinguishing factor. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Moreover, the CSA is a comprehensive regulatory regime specifically designed to regulate which controlled substances can be utilized for medicinal purposes, and in what manner. Indeed, most of the substances classified in the CSA "have a useful and legitimate medical purpose." 21 U.S. C. 801(1). Thus, even if respondents are correct that marijuana does have accepted medical uses and thus should be redesignated as a lesser schedule drug,[] the CSA would still impose controls beyond what is required by California law. The CSA requires manufacturers, physicians, pharmacies, and other handlers of controlled substances to comply with statutory and regulatory provisions mandating registration with the DEA, compliance with specific production quotas, security controls to guard against diversion, recordkeeping and reporting obligations, and prescription requirements. See *28 821-830; 21 CFR 1301 et seq. Furthermore, the dispensing of new drugs, even when doctors approve their use, must await federal approval. United Accordingly, the mere fact that marijuana—like virtually every other controlled substance regulated by the CSA—is used for medicinal purposes cannot possibly serve to distinguish it from the core activities regulated by the CSA. Nor can it serve as an "objective marke[r]" or "objective facto[r]" to arbitrarily narrow the relevant class as the dissenters suggest, post, at 47 (opinion of O'CONNOR, J.); post, at 68 (opinion of THOMAS, J.). More fundamentally, if, as the principal dissent contends, the personal cultivation, possession, and use of marijuana for medicinal purposes is beyond the "`outer limits' of Congress' Commerce Clause authority," post, at 42 (opinion of O'CONNOR, J.), it must be true that such personal use of marijuana (or any other homegrown drug) for recreational purposes is beyond those "`outer limits,'" whether or not a State elects to authorize or even regulate such use. JUSTICE THOMAS' separate dissent suffers from the same sweeping implications. That is, the dissenters' rationale logically extends to place any federal regulation (including quality, prescription, or quantity controls) of any locally cultivated and possessed controlled substance for any purpose beyond the "`outer limits'" of Congress' Commerce Clause authority. One need not have a degree in economics to understand why a nationwide exemption for the vast quantity of marijuana (or other drugs) locally cultivated for personal use (which presumably would include use by friends, neighbors, and family members) may have a substantial impact on the interstate market for this extraordinarily popular substance. The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity. Indeed, that judgment is not only rational, but "visible to the *29 naked eye," under any commonsense appraisal of the probable consequences of such an open-ended exemption. Second, limiting the activity to marijuana possession and cultivation "in accordance with state law" cannot serve to place respondents' activities beyond congressional reach. The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail. It is beyond peradventure that federal power over commerce is "`superior to that of the States to provide for the welfare or necessities of their inhabitants,'" however legitimate or dire those necessities may be. ). See -196; ("`[N]o form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress'"). Just as state acquiescence to federal regulation cannot expand the bounds of the Commerce Clause, see, e. g., -662 (noting that States requested federal intervention), so too state action cannot circumscribe Congress' plenary commerce power. See United[] *30 Respondents acknowledge this proposition, but nonetheless contend that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market." Tr. of Oral Arg. 27. The dissenters fall prey to similar reasoning. See n. at 26 and this page. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Indeed, that the California exemptions will have a significant impact on both the supply and demand sides of the market for marijuana is not just "plausible" as the principal dissent concedes, post, at 56 (opinion of O'CONNOR, J.), it is readily apparent. The exemption for physicians provides them with an economic incentive to grant their patients permission to use the drug. In contrast to most prescriptions for legal drugs, which limit the dosage and duration of the usage, under California law the doctor's permission to *31 recommend marijuana use is open-ended. The authority to grant permission whenever the doctor determines that a patient is afflicted with "any other illness for which marijuana provides relief," Cal. Health & Safety Code Ann. 11362.5(b)(1)(A) (West Supp. 05), is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic.[39] And our cases have taught us that there are some unscrupulous physicians who overprescribe when it is sufficiently profitable to do so.[40] The exemption for cultivation by patients and caregivers can only increase the supply of marijuana in the California market.[41] The likelihood that all such production will *32 promptly terminate when patients recover or will precisely match the patients' medical needs during their convalescence seems remote; whereas the danger that excesses will satisfy some of the admittedly enormous demand for recreational use seems obvious.[42] Moreover, that the national and international narcotics trade has thrived in the face of vigorous criminal enforcement efforts suggests that no small number of unscrupulous people will make use of the California exemptions to serve their commercial ends whenever it is feasible to do so.[43] Taking into account the fact that California is only one of at least nine States to have authorized the medical use of marijuana, a fact JUSTICE O'CONNOR's dissent conveniently disregards in arguing that the demonstrated effect on commerce while admittedly "plausible" is ultimately "unsubstantiated," post, at 56, 55, Congress could have rationally concluded that the aggregate impact on the national market of all the transactions exempted from federal supervision is unquestionably substantial. So, from the "separate and distinct" class of activities identified by the Court of Appeals (and adopted by the dissenters), we are left with "the intrastate, noncommercial cultivation, possession and use of marijuana." Thus the case for the exemption comes down to the claim that a locally cultivated product that is used domestically *33 rather than sold on the open market is not subject to federal Given the findings in the CSA and the undisputed magnitude of the commercial market for marijuana, our decisions in and the later cases endorsing its reasoning foreclose that claim. V Respondents raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated. The case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

Justice Scalia

concurring

Gonzales v. Raich

2005-06-06

https://www.courtlistener.com/opinion/799995/gonzales-v-raich/

https://www.courtlistener.com/api/rest/v3/clusters/799995/

2004-054

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the *34 channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. Id., at 150; see United States v. Morrison, 529 U.S. 598, 608-609 (2000); United States v. Lopez, 514 U.S. 549, 558-559 (1995); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 276-277 (1981). The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189-190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v. McClung, 379 U.S. 294, 301-302 (1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting).[1] And the category of "activities that substantially affect interstate commerce," Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws *35 governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. I Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937). That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e. g., Hodel, supra, at 281 (surface coal mining); Katzenbach, supra, at 300 (discrimination by restaurants); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964) (discrimination by hotels); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 237 (1948) (intrastate price fixing); Board of Trade of Chicago v. Olsen, 262 U.S. 1, 40 (1923) (activities of a local grain exchange); Stafford v. Wallace, 258 U.S. 495, 517, 524-525 (1922) (intrastate transactions at stockyard). Lopez and Morrison recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, supra, at 560; Morrison, supra, at 610 (same). This principle is not without limitation. In Lopez and Morrison, the Court — conscious of the potential of the "substantially affects" test to "`obliterate the distinction between what is national and what is local,'" Lopez, supra, at 566-567 *36 (quoting A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 554 (1935)); see also Morrison, supra, at 615-616 — rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. Lopez, supra, at 564-566; Morrison, supra, at 617-618. "[I]f we were to accept [such] arguments," the Court reasoned in Lopez, "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." 514 U. S., at 564; see also Morrison, supra, at 615-616. Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," Lopez, supra, at 567, in order to establish that noneconomic activity has a substantial effect on interstate commerce. As we implicitly acknowledged in Lopez, however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in Lopez was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 514 U. S., at 561. This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." Wrightwood Dairy Co., supra, at 119; see also United States v. Darby, 312 U.S. 100, 118-119 (1941); Shreveport Rate Cases, supra, at 353. As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." 315 U. S., at 118-119. *37 Although this power "to make ... regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,[2] and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from Lopez quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See Lopez, supra, at 561. The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See Darby, supra, at 121. In Darby, for instance, the Court explained that "Congress, having ... adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U. S., at 121, could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, id., at 119-121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, id., at 125. While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, id., at 122-123, it affirmed the latter on the sole ground that "[t]he requirement *38 for records even of the intrastate transaction is an appropriate means to the legitimate end," id., at 125. As the Court said in the Shreveport Rate Cases, the Necessary and Proper Clause does not give "Congress ... the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions ... may thereby be controlled." 234 U. S., at 353; see also Jones & Laughlin Steel Corp., supra, at 38 (the logic of the Shreveport Rate Cases is not limited to instrumentalities of commerce). II Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces Lopez and Morrison to little "more than a drafting guide." Post, at 46 (opinion of O'CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could ... undercut" its regulation of interstate commerce. See Lopez, supra, at 561; ante, at 18, 24-25. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." Lopez, supra, at 567-568. Lopez and Morrison affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond *39 the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; Lopez expressly disclaimed that it was such a case, 514 U. S., at 561, and Morrison did not even discuss the possibility that it was. (The Court of Appeals in Morrison made clear that it was not. See Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820, 834-835 (CA4 1999) (en banc).) To dismiss this distinction as "superficial and formalistic," see post, at 47 (O'CONNOR, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See McCulloch v. Maryland, 4 Wheat. 316, 421-422 (1819). And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in McCulloch v. Maryland, even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Id., at 421. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." Ibid. These phrases are not merely hortatory. For example, cases such as Printz v. United States, 521 U.S. 898 (1997), and New York v. United States, 505 U.S. 144 (1992), affirm that a law is not "`proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." Printz, supra, at 923-924; see also New York, supra, at 166. III The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, *40 foster and protect the commerce, but embraces those which prohibit it." Darby, supra, at 113. See also Hipolite Egg Co. v. United States, 220 U.S. 45, 58 (1911); Lottery Case, 188 U.S. 321, 354 (1903). To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances — both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S. C. §§ 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.[3]*41 See ante, at 25-33. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See ante, at 30, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." McCulloch, 4 Wheat., at 424. Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," id., at 421 — except to argue that the CSA regulates an area typically left to state regulation. See post, at 48, 51 (opinion of O'CONNOR, J.); post, at 66 (opinion of THOMAS, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of Cities v. Usery, 426 U.S. 833, 840 (1976); see Cleveland v. United States, 329 U.S. 14, 19 (1946); McCulloch, supra, at 424. At bottom, respondents' *42 state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree. * * * I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See Lopez, 514 U. S., at 561. That is sufficient to authorize the application of the CSA to respondents.

I agree with the Court's holding that the Controlled Substances Act (CSA) may validly be applied to respondents' cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced. Since our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the *34 channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that "substantially affect" interstate commerce. ; see United ; United ; The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete. It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United Congress's regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. ; ; United ; Shreveport Rate ; United[1] And the category of "activities that substantially affect interstate commerce," is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws *35 governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce. I Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances. Most directly, the commerce power permits Congress not only to devise rules for the governance of commerce between States but also to facilitate interstate commerce by eliminating potential obstructions, and to restrict it by eliminating potential stimulants. See That is why the Court has repeatedly sustained congressional legislation on the ground that the regulated activities had a substantial effect on interstate commerce. See, e. g., ; ; Heart of Atlanta Motel, ; Mandeville Island Farms, ; Board of Trade of ; U.S. 495, and recognized the expansive scope of Congress's authority in this regard: "[T]he pattern is clear. Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." ; This principle is not without limitation. In and the Court — conscious of the potential of the "substantially affects" test to "`obliterate the distinction between what is national and what is local,'" at 566-567 *36 ); see also — rejected the argument that Congress may regulate noneconomic activity based solely on the effect that it may have on interstate commerce through a remote chain of inferences. ; "[I]f we were to accept [such] arguments," the Court reasoned in "we are hard pressed to posit any activity by an individual that Congress is without power to regulate." ; see also Thus, although Congress's authority to regulate intrastate activity that substantially affects interstate commerce is broad, it does not permit the Court to "pile inference upon inference," in order to establish that noneconomic activity has a substantial effect on interstate commerce. As we implicitly acknowledged in however, Congress's authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activities that have a substantial effect on interstate commerce. Though the conduct in was not economic, the Court nevertheless recognized that it could be regulated as "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." This statement referred to those cases permitting the regulation of intrastate activities "which in a substantial way interfere with or obstruct the exercise of the granted power." Wrightwood Dairy at ; see also United 118- ; Shreveport Rate at As the Court put it in Wrightwood Dairy, where Congress has the authority to enact a regulation of interstate commerce, "it possesses every power needed to make that regulation effective." -. *37 Although this power "to make regulation effective" commonly overlaps with the authority to regulate economic activities that substantially affect interstate commerce,[2] and may in some cases have been confused with that authority, the two are distinct. The regulation of an intrastate activity may be essential to a comprehensive regulation of interstate commerce even though the intrastate activity does not itself "substantially affect" interstate commerce. Moreover, as the passage from quoted above suggests, Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce. See The relevant question is simply whether the means chosen are "reasonably adapted" to the attainment of a legitimate end under the commerce power. See In for instance, the Court explained that "Congress, having adopted the policy of excluding from interstate commerce all goods produced for the commerce which do not conform to the specified labor standards," 312 U. S., could not only require employers engaged in the production of goods for interstate commerce to conform to wage and hour standards, at -121, but could also require those employers to keep employment records in order to demonstrate compliance with the regulatory scheme, While the Court sustained the former regulation on the alternative ground that the activity it regulated could have a "great effect" on interstate commerce, it affirmed the latter on the sole ground that "[t]he requirement *38 for records even of the intrastate transaction is an appropriate means to the legitimate end," As the Court said in the Shreveport Rate the Necessary and Proper Clause does not give "Congress the authority to regulate the internal commerce of a State, as such," but it does allow Congress "to take all measures necessary or appropriate to" the effective regulation of the interstate market, "although intrastate transactions may thereby be controlled." 234 U. S., at ; see also Jones & Laughlin Steel (the logic of the Shreveport Rate is not limited to instrumentalities of commerce). II Today's principal dissent objects that, by permitting Congress to regulate activities necessary to effective interstate regulation, the Court reduces and to little "more than a drafting guide." Post, at 46 (opinion of O'CONNOR, J.). I think that criticism unjustified. Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so "could undercut" its regulation of interstate commerce. See ; ante, at 18, 24-25. This is not a power that threatens to obliterate the line between "what is truly national and what is truly local." -568. and affirm that Congress may not regulate certain "purely local" activity within the States based solely on the attenuated effect that such activity may have in the interstate market. But those decisions do not declare noneconomic intrastate activities to be categorically beyond *39 the reach of the Federal Government. Neither case involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation; expressly disclaimed that it was such a case, and did not even discuss the possibility that it was.) To dismiss this distinction as "superficial and formalistic," see post, at 47 (O'CONNOR, J., dissenting), is to misunderstand the nature of the Necessary and Proper Clause, which empowers Congress to enact laws in effectuation of its enumerated powers that are not within its authority to enact in isolation. See And there are other restraints upon the Necessary and Proper Clause authority. As Chief Justice Marshall wrote in even when the end is constitutional and legitimate, the means must be "appropriate" and "plainly adapted" to that end. Moreover, they may not be otherwise "prohibited" and must be "consistent with the letter and spirit of the constitution." These phrases are not merely hortatory. For example, cases such as and New affirm that a law is not "`proper for carrying into Execution the Commerce Clause'" "[w]hen [it] violates [a constitutional] principle of state sovereignty." ; see also New III The application of these principles to the case before us is straightforward. In the CSA, Congress has undertaken to extinguish the interstate market in Schedule I controlled substances, including marijuana. The Commerce Clause unquestionably permits this. The power to regulate interstate commerce "extends not only to those regulations which aid, * foster and protect the commerce, but embraces those which prohibit it." See also Hipolite Egg v. United States, ; Lottery Case, To effectuate its objective, Congress has prohibited almost all intrastate activities related to Schedule I substances — both economic activities (manufacture, distribution, possession with the intent to distribute) and noneconomic activities (simple possession). See 21 U.S. C. 841(a), 844(a). That simple possession is a noneconomic activity is immaterial to whether it can be prohibited as a necessary part of a larger regulation. Rather, Congress's authority to enact all of these prohibitions of intrastate controlled-substance activities depends only upon whether they are appropriate means of achieving the legitimate end of eradicating Schedule I substances from interstate commerce. By this measure, I think the regulation must be sustained. Not only is it impossible to distinguish "controlled substances manufactured and distributed intrastate" from "controlled substances manufactured and distributed interstate," but it hardly makes sense to speak in such terms. Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market — and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.[3]*41 See ante, at 25-33. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for "medical" marijuana and the more general marijuana market. See ante, at 30, and n. 38. "To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution." Finally, neither respondents nor the dissenters suggest any violation of state sovereignty of the sort that would render this regulation "inappropriate," — except to argue that the CSA regulates an area typically left to state regulation. See post, at 48, 51 (opinion of O'CONNOR, J.); post, at 66 (opinion of THOMAS, J.); Brief for Respondents 39-42. That is not enough to render federal regulation an inappropriate means. The Court has repeatedly recognized that, if authorized by the commerce power, Congress may regulate private endeavors "even when [that regulation] may pre-empt express state-law determinations contrary to the result which has commended itself to the collective wisdom of Congress." National League of 8 ; see ; At bottom, respondents' *42 state-sovereignty argument reduces to the contention that federal regulation of the activities permitted by California's Compassionate Use Act is not sufficiently necessary to be "necessary and proper" to Congress's regulation of the interstate market. For the reasons given above and in the Court's opinion, I cannot agree. * * * I thus agree with the Court that, however the class of regulated activities is subdivided, Congress could reasonably conclude that its objective of prohibiting marijuana from the interstate market "could be undercut" if those activities were excepted from its general scheme of regulation. See That is sufficient to authorize the application of the CSA to respondents.

Justice O'Connor

dissenting

Gonzales v. Raich

2005-06-06

https://www.courtlistener.com/opinion/799995/gonzales-v-raich/

https://www.courtlistener.com/api/rest/v3/clusters/799995/

2004-054

We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United States v. Lopez, 514 U.S. 549, 557 (1995); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. Brecht v. Abrahamson, 507 U.S. 619, 635 (1993); Whalen v. Roe, 429 U.S. 589, 603, *43 n. 30 (1977). Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause — nestling questionable assertions of its authority into comprehensive regulatory schemes — rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in Lopez, supra, and United States v. Morrison, 529 U.S. 598 (2000). Accordingly I dissent. I In Lopez, we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm ... at a place that the individual knows, or has reasonable cause to believe, is a school zone," 18 U.S. C. § 922(q)(2)(A). We explained that "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce ..., i. e., those activities that substantially affect interstate commerce." 514 U. S., at 558-559 (citation omitted). This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585-586 (1985) (O'CONNOR, J., dissenting) (explaining that United States v. Darby, 312 U.S. 100 (1941), United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942), and Wickard v. Filburn, 317 U.S. 111 (1942), *44 based their expansion of the commerce power on the Necessary and Proper Clause, and that "the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce"); ante, at 34 (SCALIA, J., concurring in judgment). We held in Lopez that the Gun-Free School Zones Act could not be sustained as an exercise of that power. Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. Lopez, supra, at 559-567; see also Morrison, supra, at 609-613. First, we observed that our "substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that § 922(q) was a criminal statute having "nothing to do with `commerce' or any sort of economic enterprise." Lopez, 514 U. S., at 561. In this regard, we also noted that "[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Ibid. Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Ibid. Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Id., at 563. Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could *45 adversely affect the national economy. Id., at 563-567. The Constitution, we said, does not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Id., at 567. Later in Morrison, supra, we relied on the same four considerations to hold that § 40302 of the Violence Against Women Act of 1994, 108 Stat. 1941, 42 U.S. C. § 13981, exceeded Congress' authority under the Commerce Clause. In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account. II A What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of marijuana. See 21 U.S. C. §§ 841(a)(1), 844(a). Today's decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i. e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause. The Court's principal means of distinguishing Lopez from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," ante, at 23, *46 whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of `controlled substances,'" ante, at 24. Thus, according to the Court, it was possible in Lopez to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part. Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in Lopez that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," 514 U. S., at 561, the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 24-25. If the Court is right, then Lopez stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation" — thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate *47 scheme exclusively for the sake of reaching intrastate activity, see ante, at 25, n. 34; ante, at 38-39 (SCALIA, J., concurring in judgment). I cannot agree that our decision in Lopez contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See Morrison, 529 U. S., at 657 (BREYER, J., dissenting) (given that Congress can regulate "`an essential part of a larger regulation of economic activity,'" "can Congress save the present law by including it, or much of it, in a broader `Safe Transport' or `Worker Safety' act?"). Lopez and Morrison did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see Lopez, 514 U. S., at 557; id., at 578 (KENNEDY, J., concurring), as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers. The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious — that their personal activities do not have a substantial effect on interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 193 (1968); Wickard, 317 U. S., at 127-128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the *48 terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. See generally Lopez, 514 U. S., at 567; id., at 579 (KENNEDY, J., concurring). A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation — including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation — recognize that medical and nonmedical (i. e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently. See 21 U.S. C. § 812; Cal. Health & Safety Code Ann. § 11362.5 (West Supp. 2005); ante, at 5 (opinion of the Court). Respondents challenge only the application of the CSA to medicinal use of marijuana. Cf. United States v. Raines, 362 U.S. 17, 20-22 (1960) (describing our preference for as-applied rather than facial challenges). Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where "States lay claim by right of history and expertise." Lopez, supra, at 583 (KENNEDY, J., concurring); see also Morrison, supra, at 617-619; Lopez, supra, at 580 (KENNEDY, J., concurring) ("The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required"); cf. Garcia, 469 U. S., at 586 (O'CONNOR, J., dissenting) ("[S]tate autonomy is a relevant factor in assessing the means by which Congress exercises its powers" under the Commerce Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes. *49 B Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme. The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court's opinion — the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, see Lopez, supra, at 565 ("depending on the level of generality, any activity can be looked upon as commercial") — the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach. The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between "what is national and what is local," Jones & Laughlin Steel, 301 U. S., at 37. It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care *50 substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow — a federal police power. Lopez, supra, at 564. In Lopez and Morrison, we suggested that economic activity usually relates directly to commercial activity. See Morrison, 529 U. S., at 611, n. 4 (intrastate activities that have been within Congress' power to regulate have been "of an apparent commercial character"); Lopez, 514 U. S., at 561 (distinguishing the Gun-Free School Zones Act of 1990 from "activities that arise out of or are connected with a commercial transaction"). The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) Lopez makes clear that possession is not itself commercial activity. Ibid. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. id., at 583 (KENNEDY, J., concurring) ("The statute now before us forecloses the States from experimenting ... and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term"). The Court suggests that Wickard, which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," Lopez, supra, at 560, established federal regulatory power over any home consumption of a commodity for which a national market exists. *51 I disagree. Wickard involved a challenge to the Agricultural Adjustment Act of 1938 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. 317 U. S., at 115-116. The AAA itself confirmed that Congress made an explicit choice not to reach — and thus the Court could not possibly have approved of federal control over — small-scale, noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in Wickard, the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. Id., at 130, n. 30. Wickard, then, did not extend Commerce Clause authority to something as modest as the home cook's herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that Wickard did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach. Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i. e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. *52 Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. Garcia, 469 U. S., at 585 (O'CONNOR, J., dissenting) ("It is not enough that the `end be legitimate'; the means to that end chosen by Congress must not contravene the spirit of the Constitution"). As JUSTICE SCALIA recognizes, see ante, at 39 (opinion concurring in judgment), Congress cannot use its authority under the Clause to contravene the principle of state sovereignty embodied in the Tenth Amendment. Likewise, that authority must be used in a manner consistent with the notion of enumerated powers — a structural principle that is as much part of the Constitution as the Tenth Amendment's explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an interstate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation. Cf. Printz v. United States, 521 U.S. 898, 923 (1997) (the Necessary and Proper Clause is "the last, best hope of those who defend ultra vires congressional action"). Indeed, if it were enough in "substantial effects" cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in Lopez that guns in school zones are "never more than an instant from the interstate market" in guns already subject to extensive federal regulation, ante, at 40 (SCALIA, J., concurring in judgment), recast Lopez as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court's and the concurrence's logic, for example, the Lopez court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on "sell[ing]" or "deliver[ing]" firearms or ammunition to "any individual who the licensee knows or has reasonable cause to believe is less than *53 eighteen years of age." 18 U.S. C. § 922(b)(1) (1988 ed., Supp. II).) There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market — or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See Lopez, 514 U. S., at 563. And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial. In this regard, again, this case is readily distinguishable from Wickard. To decide whether the Secretary could regulate local wheat farming, the Court looked to "the actual effects of the activity in question upon interstate commerce." 317 U. S., at 120. Critically, the Court was able to consider "actual effects" because the parties had "stipulated a summary of the economics of the wheat industry." Id., at 125. After reviewing in detail the picture of the industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent. Id., at 127. With real numbers at hand, the Wickard Court could easily conclude that "a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions" nationwide. Id., at 128; see also id., at 128-129 ("This record leaves us in no doubt" about substantial effects). The Court recognizes that "the record in the Wickard case itself established the causal connection between the production *54 for local use and the national market" and argues that "we have before us findings by Congress to the same effect." Ante, at 20 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA saying that (1) local distribution and possession of controlled substances causes "swelling" in interstate traffic; (2) local production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over intrastate incidents "is essential to the effective control" over interstate drug trafficking. 21 U.S. C. §§ 801(1)-(6). These bare declarations cannot be compared to the record before the Court in Wickard. They amount to nothing more than a legislative insistence that the regulation of controlled substances must be absolute. They are asserted without any supporting evidence — descriptive, statistical, or otherwise. "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 311 (1981) (REHNQUIST, J., concurring in judgment). Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in Morrison should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. 529 U. S., at 614; id., at 628-636 (SOUTER, J., dissenting) (chronicling findings). But, recognizing that "`"[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,"'" we found Congress' detailed findings inadequate. Id., at 614 (quoting Lopez, supra, at 557, n. 2, in turn quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)). If, as the Court claims, today's decision does not *55 break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in Morrison, while the CSA's abstract, unsubstantiated, generalized findings about controlled substances do? In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the inadequacy of Congress' findings; in part because this case comes to us from the grant of a preliminary injunction, there has been no such development.) Because here California, like other States, has carved out a limited class of activity for distinct regulation, the inadequacy of the CSA's findings is especially glaring. The California Compassionate Use Act exempts from other state drug laws patients and their caregivers "who posses[s] or cultivat[e] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" to treat a list of serious medical conditions. Cal. Health & Safety Code Ann. §§ 11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare ibid. with, e. g., § 11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); § 11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical purposes. § 11362.5(b)(2) (West Supp. 2005). To promote the Act's operation and to facilitate law enforcement, California recently enacted an identification card system for qualified patients. §§ 11362.7-11362.83. We generally assume States enforce their laws, see Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and have no reason to think otherwise here. *56 The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug's seeping into the market in a significant way. The Government does cite one estimate that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally Wirtz, 392 U. S., at 196, n. 27 (Congress cannot use "a relatively trivial impact on commerce as an excuse for broad general regulation of state or private activities"); cf. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 21-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/ d03189.pdf (as visited June 3, 2005, and available in Clerk of Court's case file) (in four California counties before the identification card system was enacted, voluntarily registered medical marijuana patients were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants represented less than 0.05 percent of the States' populations). It also provides anecdotal evidence about the CSA's enforcement. See Reply Brief for Petitioners 17-18. The Court also offers some arguments about the effect of the Compassionate Use Act on the national market. It says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, *57 they add little to the CSA's conclusory statements about diversion, essentiality, and market effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of Lopez and Morrison. III We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

We enforce the "outer limits" of Congress' Commerce Clause authority not for their own sake, but to protect historic spheres of state sovereignty from excessive federal encroachment and thereby to maintain the distribution of power fundamental to our federalist system of government. United ; One of federalism's chief virtues, of course, is that it promotes innovation by allowing for the possibility that "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." New State Ice This case exemplifies the role of States as laboratories. The States' core police powers have always included authority to define criminal law and to protect the health, safety, and welfare of their citizens. ; Exercising those powers, California (by ballot initiative and then by legislative codification) has come to its own conclusion about the difficult and sensitive question of whether marijuana should be available to relieve severe pain and suffering. Today the Court sanctions an application of the federal Controlled Substances Act that extinguishes that experiment, without any proof that the personal cultivation, possession, and use of marijuana for medicinal purposes, if economic activity in the first place, has a substantial effect on interstate commerce and is therefore an appropriate subject of federal regulation. In so doing, the Court announces a rule that gives Congress a perverse incentive to legislate broadly pursuant to the Commerce Clause — nestling questionable assertions of its authority into comprehensive regulatory schemes — rather than with precision. That rule and the result it produces in this case are irreconcilable with our decisions in and United Accordingly I dissent. I In we considered the constitutionality of the Gun-Free School Zones Act of 1990, which made it a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone," 18 U.S. C. 922(q)(2)(A). We explained that "Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i. e., those activities that substantially affect interstate commerce." -559 This power derives from the conjunction of the Commerce Clause and the Necessary and Proper Clause. United and *44 based their expansion of the commerce power on the Necessary and Proper Clause, and that "the reasoning of these cases underlies every recent decision concerning the reach of Congress to activities affecting interstate commerce"); ante, at 34 (SCALIA, J., concurring in judgment). We held in that the Gun-Free School Zones Act could not be sustained as an exercise of that power. Our decision about whether gun possession in school zones substantially affected interstate commerce turned on four considerations. ; see also First, we observed that our "substantial effects" cases generally have upheld federal regulation of economic activity that affected interstate commerce, but that 922(q) was a criminal statute having "nothing to do with `commerce' or any sort of economic enterprise." In this regard, we also noted that "[s]ection 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce." Second, we noted that the statute contained no express jurisdictional requirement establishing its connection to interstate commerce. Third, we found telling the absence of legislative findings about the regulated conduct's impact on interstate commerce. We explained that while express legislative findings are neither required nor, when provided, dispositive, findings "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye." Finally, we rejected as too attenuated the Government's argument that firearm possession in school zones could result in violent crime which in turn could *45 adversely affect the national economy. -567. The Constitution, we said, does not tolerate reasoning that would "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Later in we relied on the same four considerations to hold that 40302 of the Violence Against Women Act of 1994, 42 U.S. C. 13981, exceeded Congress' authority under the Commerce Clause. In my view, the case before us is materially indistinguishable from and when the same considerations are taken into account. II A What is the relevant conduct subject to Commerce Clause analysis in this case? The Court takes its cues from Congress, applying the above considerations to the activity regulated by the Controlled Substances Act (CSA) in general. The Court's decision rests on two facts about the CSA: (1) Congress chose to enact a single statute providing a comprehensive prohibition on the production, distribution, and possession of all controlled substances, and (2) Congress did not distinguish between various forms of intrastate noncommercial cultivation, possession, and use of marijuana. See 21 U.S. C. 841(a)(1), 844(a). Today's decision suggests that the federal regulation of local activity is immune to Commerce Clause challenge because Congress chose to act with an ambitious, all-encompassing statute, rather than piecemeal. In my view, allowing Congress to set the terms of the constitutional debate in this way, i. e., by packaging regulation of local activity in broader schemes, is tantamount to removing meaningful limits on the Commerce Clause. The Court's principal means of distinguishing from this case is to observe that the Gun-Free School Zones Act of 1990 was a "brief, single-subject statute," ante, at 23, *46 whereas the CSA is "a lengthy and detailed statute creating a comprehensive framework for regulating the production, distribution, and possession of five classes of `controlled substances,'" ante, at 24. Thus, according to the Court, it was possible in to evaluate in isolation the constitutionality of criminalizing local activity (there gun possession in school zones), whereas the local activity that the CSA targets (in this case cultivation and possession of marijuana for personal medicinal use) cannot be separated from the general drug control scheme of which it is a part. Today's decision allows Congress to regulate intrastate activity without check, so long as there is some implication by legislative design that regulating intrastate activity is essential (and the Court appears to equate "essential" with "necessary") to the interstate regulatory scheme. Seizing upon our language in that the statute prohibiting gun possession in school zones was "not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," the Court appears to reason that the placement of local activity in a comprehensive scheme confirms that it is essential to that scheme. Ante, at 24-25. If the Court is right, then stands for nothing more than a drafting guide: Congress should have described the relevant crime as "transfer or possession of a firearm anywhere in the nation" — thus including commercial and noncommercial activity, and clearly encompassing some activity with assuredly substantial effect on interstate commerce. Had it done so, the majority hints, we would have sustained its authority to regulate possession of firearms in school zones. Furthermore, today's decision suggests we would readily sustain a congressional decision to attach the regulation of intrastate activity to a pre-existing comprehensive (or even not-so-comprehensive) scheme. If so, the Court invites increased federal regulation of local activity even if, as it suggests, Congress would not enact a new interstate *47 scheme exclusively for the sake of reaching intrastate activity, see ante, at 25, n. 34; ante, at 38-39 (SCALIA, J., concurring in judgment). I cannot agree that our decision in contemplated such evasive or overbroad legislative strategies with approval. Until today, such arguments have been made only in dissent. See (given that Congress can regulate "`an essential part of a larger regulation of economic activity,'" "can Congress save the present law by including it, or much of it, in a broader `Safe Transport' or `Worker Safety' act?"). and did not indicate that the constitutionality of federal regulation depends on superficial and formalistic distinctions. Likewise I did not understand our discussion of the role of courts in enforcing outer limits of the Commerce Clause for the sake of maintaining the federalist balance our Constitution requires, see 514 U. S., at ; as a signal to Congress to enact legislation that is more extensive and more intrusive into the domain of state power. If the Court always defers to Congress as it does today, little may be left to the notion of enumerated powers. The hard work for courts, then, is to identify objective markers for confining the analysis in Commerce Clause cases. Here, respondents challenge the constitutionality of the CSA as applied to them and those similarly situated. I agree with the Court that we must look beyond respondents' own activities. Otherwise, individual litigants could always exempt themselves from Commerce Clause regulation merely by pointing to the obvious — that their personal activities do not have a substantial effect on interstate commerce. See ; -128. The task is to identify a mode of analysis that allows Congress to regulate more than nothing (by declining to reduce each case to its litigants) and less than everything (by declining to let Congress set the *48 terms of analysis). The analysis may not be the same in every case, for it depends on the regulatory scheme at issue and the federalism concerns implicated. See generally 514 U. S., ; A number of objective markers are available to confine the scope of constitutional review here. Both federal and state legislation — including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation — recognize that medical and nonmedical (i. e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently. See 21 U.S. C. 812; Cal. Health & Safety Code Ann. 11362.5 (West Supp. 2005); ante, at 5 (opinion of the Court). Respondents challenge only the application of the CSA to medicinal use of marijuana. Cf. United Moreover, because fundamental structural concerns about dual sovereignty animate our Commerce Clause cases, it is relevant that this case involves the interplay of federal and state regulation in areas of criminal law and social policy, where "States lay claim by right of history and expertise." ; see also ; ("The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required"); cf. ("[S]tate autonomy is a relevant factor in assessing the means by which Congress exercises its powers" under the Commerce Clause). California, like other States, has drawn on its reserved powers to distinguish the regulation of medicinal marijuana. To ascertain whether Congress' encroachment is constitutionally justified in this case, then, I would focus here on the personal cultivation, possession, and use of marijuana for medicinal purposes. *49 B Having thus defined the relevant conduct, we must determine whether, under our precedents, the conduct is economic and, in the aggregate, substantially affects interstate commerce. Even if intrastate cultivation and possession of marijuana for one's own medicinal use can properly be characterized as economic, and I question whether it can, it has not been shown that such activity substantially affects interstate commerce. Similarly, it is neither self-evident nor demonstrated that regulating such activity is necessary to the interstate drug control scheme. The Court's definition of economic activity is breathtaking. It defines as economic any activity involving the production, distribution, and consumption of commodities. And it appears to reason that when an interstate market for a commodity exists, regulating the intrastate manufacture or possession of that commodity is constitutional either because that intrastate activity is itself economic, or because regulating it is a rational part of regulating its market. Putting to one side the problem endemic to the Court's opinion — the shift in focus from the activity at issue in this case to the entirety of what the CSA regulates, see — the Court's definition of economic activity for purposes of Commerce Clause jurisprudence threatens to sweep all of productive human activity into federal regulatory reach. The Court uses a dictionary definition of economics to skirt the real problem of drawing a meaningful line between "what is national and what is local," Jones & Laughlin 301 U. S., at It will not do to say that Congress may regulate noncommercial activity simply because it may have an effect on the demand for commercial goods, or because the noncommercial endeavor can, in some sense, substitute for commercial activity. Most commercial goods or services have some sort of privately producible analogue. Home care *50 substitutes for daycare. Charades games substitute for movie tickets. Backyard or windowsill gardening substitutes for going to the supermarket. To draw the line wherever private activity affects the demand for market goods is to draw no line at all, and to declare everything economic. We have already rejected the result that would follow — a federal police power. In and we suggested that economic activity usually relates directly to commercial activity. See n. 4 ; The homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character. Everyone agrees that the marijuana at issue in this case was never in the stream of commerce, and neither were the supplies for growing it. (Marijuana is highly unusual among the substances subject to the CSA in that it can be cultivated without any materials that have traveled in interstate commerce.) makes clear that possession is not itself commercial activity. And respondents have not come into possession by means of any commercial transaction; they have simply grown, in their own homes, marijuana for their own use, without acquiring, buying, selling, or bartering a thing of value. Cf. ("The statute now before us forecloses the States from experimenting and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term"). The Court suggests that which we have identified as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity," established federal regulatory power over any home consumption of a commodity for which a national market exists. *51 I disagree. involved a challenge to the Agricultural Adjustment Act of 8 (AAA), which directed the Secretary of Agriculture to set national quotas on wheat production, and penalties for excess production. -116. The AAA itself confirmed that Congress made an explicit choice not to reach — and thus the Court could not possibly have approved of federal control over — small-scale, noncommercial wheat farming. In contrast to the CSA's limitless assertion of power, Congress provided an exemption within the AAA for small producers. When Filburn planted the wheat at issue in the statute exempted plantings less than 200 bushels (about six tons), and when he harvested his wheat it exempted plantings less than six acres. then, did not extend Commerce Clause authority to something as modest as the home cook's herb garden. This is not to say that Congress may never regulate small quantities of commodities possessed or produced for personal use, or to deny that it sometimes needs to enact a zero tolerance regime for such commodities. It is merely to say that did not hold or imply that small-scale production of commodities is always economic, and automatically within Congress' reach. Even assuming that economic activity is at issue in this case, the Government has made no showing in fact that the possession and use of homegrown marijuana for medical purposes, in California or elsewhere, has a substantial effect on interstate commerce. Similarly, the Government has not shown that regulating such activity is necessary to an interstate regulatory scheme. Whatever the specific theory of "substantial effects" at issue (i. e., whether the activity substantially affects interstate commerce, whether its regulation is necessary to an interstate regulatory scheme, or both), a concern for dual sovereignty requires that Congress' excursion into the traditional domain of States be justified. That is why characterizing this as a case about the Necessary and Proper Clause does not change the analysis significantly. *52 Congress must exercise its authority under the Necessary and Proper Clause in a manner consistent with basic constitutional principles. ("It is not enough that the `end be legitimate'; the means to that end chosen by Congress must not contravene the spirit of the Constitution"). As JUSTICE SCALIA recognizes, see ante, at 39 (opinion concurring in judgment), Congress cannot use its authority under the Clause to contravene the principle of state sovereignty embodied in the Tenth Amendment. Likewise, that authority must be used in a manner consistent with the notion of enumerated powers — a structural principle that is as much part of the Constitution as the Tenth Amendment's explicit textual command. Accordingly, something more than mere assertion is required when Congress purports to have power over local activity whose connection to an interstate market is not self-evident. Otherwise, the Necessary and Proper Clause will always be a back door for unconstitutional federal regulation. Cf. Indeed, if it were enough in "substantial effects" cases for the Court to supply conceivable justifications for intrastate regulation related to an interstate market, then we could have surmised in that guns in school zones are "never more than an instant from the interstate market" in guns already subject to extensive federal regulation, ante, at 40 (SCALIA, J., concurring in judgment), recast as a Necessary and Proper Clause case, and thereby upheld the Gun-Free School Zones Act of 1990. (According to the Court's and the concurrence's logic, for example, the court should have reasoned that the prohibition on gun possession in school zones could be an appropriate means of effectuating a related prohibition on "sell[ing]" or "deliver[ing]" firearms or ammunition to "any individual who the licensee knows or has reasonable cause to believe is less than *53 eighteen years of age." 18 U.S. C. 922(b)(1) (1988 ed., Supp. II).) There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market — or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not "visible to the naked eye." See 514 U. S., And here, in part because common sense suggests that medical marijuana users may be limited in number and that California's Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial. In this regard, again, this case is readily distinguishable from To decide whether the Secretary could regulate local wheat farming, the Court looked to "the actual effects of the activity in question upon interstate commerce." Critically, the Court was able to consider "actual effects" because the parties had "stipulated a summary of the economics of the wheat industry." After reviewing in detail the picture of the industry provided in that summary, the Court explained that consumption of homegrown wheat was the most variable factor in the size of the national wheat crop, and that on-site consumption could have the effect of varying the amount of wheat sent to market by as much as 20 percent. With real numbers at hand, the Court could easily conclude that "a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions" nationwide. ; see also -129 The Court recognizes that "the record in the case itself established the causal connection between the production *54 for local use and the national market" and argues that "we have before us findings by Congress to the same effect." Ante, at 20 (emphasis added). The Court refers to a series of declarations in the introduction to the CSA saying that (1) local distribution and possession of controlled substances causes "swelling" in interstate traffic; (2) local production and distribution cannot be distinguished from interstate production and distribution; (3) federal control over intrastate incidents "is essential to the effective control" over interstate drug trafficking. 21 U.S. C. 801(1)-(6). These bare declarations cannot be compared to the record before the Court in They amount to nothing more than a legislative insistence that the regulation of controlled substances must be absolute. They are asserted without any supporting evidence — descriptive, statistical, or otherwise. "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Indeed, if declarations like these suffice to justify federal regulation, and if the Court today is right about what passes rationality review before us, then our decision in should have come out the other way. In that case, Congress had supplied numerous findings regarding the impact gender-motivated violence had on the national economy. ; (chronicling findings). But, recognizing that "`"[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question,"'" we found Congress' detailed findings inadequate. ). If, as the Court claims, today's decision does not *55 break with precedent, how can it be that voluminous findings, documenting extensive hearings about the specific topic of violence against women, did not pass constitutional muster in while the CSA's abstract, unsubstantiated, generalized findings about controlled substances do? In particular, the CSA's introductory declarations are too vague and unspecific to demonstrate that the federal statutory scheme will be undermined if Congress cannot exert power over individuals like respondents. The declarations are not even specific to marijuana. (Facts about substantial effects may be developed in litigation to compensate for the inadequacy of Congress' findings; in part because this case comes to us from the grant of a preliminary injunction, there has been no such development.) Because here California, like other States, has carved out a limited class of activity for distinct regulation, the inadequacy of the CSA's findings is especially glaring. The California Compassionate Use Act exempts from other state drug laws patients and their caregivers "who posses[s] or cultivat[e] marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician" to treat a list of serious medical conditions. Cal. Health & Safety Code Ann. 11362.5(d), 11362.7(h) (West Supp. 2005) (emphasis added). Compare with, e. g., 11357(b) (West 1991) (criminalizing marijuana possession in excess of 28.5 grams); 11358 (criminalizing marijuana cultivation). The Act specifies that it should not be construed to supersede legislation prohibiting persons from engaging in acts dangerous to others, or to condone the diversion of marijuana for nonmedical purposes. 11362.5(b)(2) (West Supp. 2005). To promote the Act's operation and to facilitate law enforcement, California recently enacted an identification card system for qualified patients. 11362.7-11362.83. We generally assume States enforce their laws, see and have no reason to think otherwise here. *56 The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug's seeping into the market in a significant way. The Government does cite one estimate that there were over 100,000 Compassionate Use Act users in California in 2004, Reply Brief for Petitioners 16, but does not explain, in terms of proportions, what their presence means for the national illicit drug market. See generally n. 27 ; cf. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 21-23 (Rep. No. 03-189, Nov. 2002), http://www.gao.gov/new.items/ d03189.pdf (as visited June 3, 2005, and available in Clerk of Court's case file) (in four California counties before the identification card system was enacted, voluntarily registered medical marijuana patients were less than 0.5 percent of the population; in Alaska, Hawaii, and Oregon, statewide medical marijuana registrants represented less than 0.05 percent of the States' populations). It also provides anecdotal evidence about the CSA's enforcement. See Reply Brief for Petitioners 17-18. The Court also offers some arguments about the effect of the Compassionate Use Act on the national market. It says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, *57 they add little to the CSA's conclusory statements about diversion, essentiality, and market effect. Piling assertion upon assertion does not, in my view, satisfy the substantiality test of and III We would do well to recall how James Madison, the father of the Constitution, described our system of joint sovereignty to the people of New York: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." The Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961). Relying on Congress' abstract assertions, the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent.

Justice Thomas

second_dissenting

Gonzales v. Raich

2005-06-06

https://www.courtlistener.com/opinion/799995/gonzales-v-raich/

https://www.courtlistener.com/api/rest/v3/clusters/799995/

2004-054

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate *58 this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers. I Respondents' local cultivation and consumption of marijuana is not "Commerce ... among the several States." U. S. Const., Art. I, § 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, § 8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct. A As I explained at length in United States v. Lopez, 514 U.S. 549 (1995), the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. Id., at 586-589 (concurring opinion). The Clause's text, structure, and history all indicate that, at the time of the founding, the term "`commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Id., at 585 (THOMAS, J., concurring). Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Id., at 586-587 (THOMAS, J., concurring). Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange — not all economic or gainful activity that has some attenuated connection to trade or exchange. Ibid. (THOMAS, *59 J., concurring); Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 112-125 (2001). The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 857-862 (2003). Even the majority does not argue that respondents' conduct is itself "Commerce among the several States," Art. I, § 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S. C. § 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial. B More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate commerce. Art. I, § 8, cl. 18. The Necessary *60 and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.[1] Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.[2] In McCulloch v. Maryland, 4 Wheat. 316 (1819), this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Id., at 421. To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution." Ibid.; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 (1985). The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause. 1 Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state *61 lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. Art. I, § 8, cl. 18. See 21 U.S. C. § 801(6). However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate commerce." Brief for Petitioners 14; see ante, at 22 (majority opinion) (employing rational-basis review). It must be "plainly adapted" to regulating interstate marijuana trafficking — in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate commerce. Sabri v. United States, 541 U.S. 600, 613 (2004) (THOMAS, J., concurring in judgment); see also United States v. Dewitt, 9 Wall. 41, 44 (1870) (finding ban on intrastate sale of lighting oils not "appropriate and plainly adapted means for carrying into execution" Congress' taxing power). On its face, a ban on the intrastate cultivation, possession, and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 12-13, 22 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.[3] Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that *62 Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 47-48 (O'CONNOR, J., dissenting). The Court of Appeals found that respondents' "limited use is clearly distinct from the broader illicit drug market," because "th[eir] medicinal marijuana . . . is not intended for, nor does it enter, the stream of commerce." Raich v. Ashcroft, 352 F. 3d 1222, 1228 (CA9 2003). If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich. California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. § 11362.5(b)(1)(A) (West Supp. 2005), and prohibits "the diversion of marijuana for nonmedical purposes," § 11362.5(b)(2).[4] California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, § 11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, § 11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. §§ 11362.XXX-XXXXX.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. *63 See, e. g., People v. Spark, 121 Cal. App. 4th 259, 263, 16 Cal. Rptr. 3d 840, 843 (2004). This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 795 (1988), and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective. The scant evidence that exists suggests that few people — the vast majority of whom are aged 40 or older — register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 22-23 (Rep. No. 03-189, Nov. 2002), http://www. gao.gov/new.items/d03189.pdf (all Internet materials as visited June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. Id., at 32. These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. People v. Mower, 28 Cal. 4th 457, 469-470, 49 P.3d 1067, 1073-1075 (2002); People v. Trippet, 56 Cal. App. 4th 1532, 1549, 66 Cal. Rptr. 2d 559, 560 (1997). Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use — drugs like morphine *64 and amphetamines — are available by prescription. 21 U.S. C. §§ 812(b)(2)(A)-(B); 21 CFR § 1308.12 (2004). No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions. But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 (Feb. 2004), http://www. whitehousedrugpolicy.gov/publications/factsht/marijuana/ index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market. To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U.S.C. § 801(6). But as JUSTICE O'CONNOR points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 53-55 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments. In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana. 2 Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is *65 also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., at 421. In Lopez, I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. 514 U.S., at 584, 600 (concurring opinion). This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropriat[e] state police powers under the guise of regulating commerce." United States v. Morrison, 529 U.S. 598, 627 (2000) (THOMAS, J., concurring). Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see Dewitt, 9 Wall., at 44; but see Barnett, The Original Meaning of the Necessary and Proper Clause, 6 U. Pa. J. Const. L. 183, 186 (2003) (detailing statements by Founders that the Necessary and Proper Clause was not intended to expand the scope of Congress' enumerated powers), Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. Printz v. United States, 521 U.S. 898, 923-924 (1997); Alden v. Maine, 527 U.S. 706, 732-733 (1999); Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 585 (1985) (O'CONNOR, J., dissenting); The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist). *66 Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their citizens.[5]Brecht v. Abrahamson, 507 U.S. 619, 635 (1993); Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). Further, the Government's rationale — that it may regulate the production or possession of any commodity for which there is an interstate market — threatens to remove the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (2000) (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext . . . for the accomplishment of objects not intrusted to the government." McCulloch, supra, at 423. *67 II The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 22; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at 24-25; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at 22. JUSTICE O'CONNOR explains why the majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws. A The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate commerce. The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design. Morrison, supra, at 627 (THOMAS, J., concurring). The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce, any more than activities that do not fall within, but that affect, the subjects of its other Article I powers. Lopez, 514 U. S., at 589 (THOMAS, J., concurring). Whatever additional latitude the Necessary and Proper Clause affords, supra, at 65-66, the question is whether Congress' legislation is essential to the regulation of interstate commerce itself — not whether the legislation extends only to economic *68 activities that substantially affect interstate commerce. Supra, at 60-61; ante, at 37 (SCALIA, J., concurring in judgment). The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug market. Supra, at 64. The majority ignores that whether a particular activity substantially affects interstate commerce — and thus comes within Congress' reach on the majority's approach — can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 47-48 (O'CONNOR, J., dissenting). For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.[6] The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can *69 regulate noneconomic activity that substantially affects interstate commerce. Morrison, 529 U. S., at 613 ("[T]hus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature" (emphasis added)); Lopez, supra, at 560. To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the "`the production, distribution, and consumption of commodities.'"[7]Ante, at 25 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 (O'CONNOR, J., dissenting). If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison). Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.[8] The majority's opinion *70 only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from "`[c]ommerce,'" ante, at 5, to "commercial" and "economic" activity, ante, at 23, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established . . . interstate market," ante, at 26. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it. The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 18-19; Lopez, 514 U. S., at 573-574 (KENNEDY, J., concurring). The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. Id., at 590-593 (THOMAS, J., concurring); Letter from J. Madison to S. Roane (Sept. 2, 1819), in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce — not to mention a host of local activities, like mere drug possession, that are not commercial. One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that "`[t]he Constitution created a Federal Government of limited powers.'" New York v. United States, 505 U.S. 144, 155 (1992) (quoting Gregory v. Ashcroft, *71 501 U.S. 452, 457 (1991)). That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce . . . among the several States." Congress may regulate interstate commerce — not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate commerce. B The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 22, 24-25. I have already explained why the CSA's ban on local activity is not essential. Supra, at 64. However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 22. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause. Nevertheless, the majority terms this the "pivotal' distinction between the present case and Lopez and Morrison. Ante, at 23. In Lopez and Morrison, the parties asserted facial challenges, claiming "that a particular statute or provision fell outside Congress' commerce power in its entirety." Ante, at 23. Here, by contrast, respondents claim only that the CSA falls outside Congress' commerce power as applied *72 to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid statutory scheme." Ante, at 23; see also Perez v. United States, 402 U.S. 146, 154 (1971); Maryland v. Wirtz, 392 U.S. 183, 192-193 (1968). It is true that if respondents' conduct is part of a "class of activities . . . and that class is within the reach of federal power," Perez, supra, at 154 (emphases deleted), then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Wirtz, supra, at 196, n. 27. Ante, at 47 (O'CONNOR, J., dissenting). But that begs the question at issue: whether respondents' "class of activities" is "within the reach of federal power," which depends in turn on whether the class is defined at a low or a high level of generality. Supra, at 61-62. If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable." 21 U.S. C. § 901 (emphasis added); see also United States v. Booker, 543 U.S. 220, 320-321, and n. 9 (2005) (THOMAS, J., dissenting in part). Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress' power in Lopez and Morrison, but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United States v. Raines, 362 U.S. 17, 20-21 (1960), including the Commerce Clause, see Katzenbach v. McClung, 379 U.S. 294, 295 (1964); Heart of Atlanta *73 Motel, Inc. v. United States, 379 U.S. 241, 249 (1964); Wickard v. Filburn, 317 U.S. 111, 113-114 (1942). There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental. If the majority is correct that Lopez and Morrison are distinct because they were facial challenges to "particular statute[s] or provision[s]," ante, at 23, then congressional power turns on the manner in which Congress packages legislation. Under the majority's reasoning, Congress could not enact — either as a single-subject statute or as a separate provision in the CSA — a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. Lopez, 514 U. S., at 600-601 (THOMAS, J., concurring). Finally, the majority's view — that because some of the CSA's applications are constitutional, they must all be constitutional — undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate market. "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce." Id., at 600 (THOMAS, J., concurring). The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis *74 into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA. * * * The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern," id., at 583 (KENNEDY, J., concurring). The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 502 (2001) (STEVENS, J., concurring in judgment). Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate *58 this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers. I Respondents' local cultivation and consumption of marijuana is not "Commerce among the several States." U. S. Const., Art. I, 8, cl. 3. By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power. The majority supports this conclusion by invoking, without explanation, the Necessary and Proper Clause. Regulating respondents' conduct, however, is not "necessary and proper for carrying into Execution" Congress' restrictions on the interstate drug trade. Art. I, 8, cl. 18. Thus, neither the Commerce Clause nor the Necessary and Proper Clause grants Congress the power to regulate respondents' conduct. A As I explained at length in United the Commerce Clause empowers Congress to regulate the buying and selling of goods and services trafficked across state lines. The Clause's text, structure, and history all indicate that, at the time of the founding, the term "`commerce' consisted of selling, buying, and bartering, as well as transporting for these purposes." Commerce, or trade, stood in contrast to productive activities like manufacturing and agriculture. Throughout founding-era dictionaries, Madison's notes from the Constitutional Convention, The Federalist Papers, and the ratification debates, the term "commerce" is consistently used to mean trade or exchange — not all economic or gainful activity that has some attenuated connection to trade or exchange. ; Barnett, The Original Meaning of the Commerce Clause, The term "commerce" commonly meant trade or exchange (and shipping for these purposes) not simply to those involved in the drafting and ratification processes, but also to the general public. Barnett, New Evidence of the Original Meaning of the Commerce Clause, Even the majority does not argue that respondents' conduct is itself "Commerce among the several States," Art. I, 8, cl. 3. Ante, at 22. Monson and Raich neither buy nor sell the marijuana that they consume. They cultivate their cannabis entirely in the State of California — it never crosses state lines, much less as part of a commercial transaction. Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some purely personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana. On this traditional understanding of "commerce," the Controlled Substances Act (CSA), 21 U.S. C. 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial. B More difficult, however, is whether the CSA is a valid exercise of Congress' power to enact laws that are "necessary and proper for carrying into Execution" its power to regulate interstate Art. I, 8, cl. 18. The Necessary *60 and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power.[1] Nor is it, however, a command to Congress to enact only laws that are absolutely indispensable to the exercise of an enumerated power.[2] In this Court, speaking through Chief Justice Marshall, set forth a test for determining when an Act of Congress is permissible under the Necessary and Proper Clause: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." To act under the Necessary and Proper Clause, then, Congress must select a means that is "appropriate" and "plainly adapted" to executing an enumerated power; the means cannot be otherwise "prohibited" by the Constitution; and the means cannot be inconsistent with "the letter and spirit of the [C]onstitution." ; D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789-1888, pp. 163-164 The CSA, as applied to respondents' conduct, is not a valid exercise of Congress' power under the Necessary and Proper Clause. 1 Congress has exercised its power over interstate commerce to criminalize trafficking in marijuana across state *61 lines. The Government contends that banning Monson and Raich's intrastate drug activity is "necessary and proper for carrying into Execution" its regulation of interstate drug trafficking. Art. I, 8, cl. 18. See 21 U.S. C. 801(6). However, in order to be "necessary," the intrastate ban must be more than "a reasonable means [of] effectuat[ing] the regulation of interstate " Brief for Petitioners 14; see ante, at 22 (majority opinion) (employing rational-basis review). It must be "plainly adapted" to regulating interstate marijuana trafficking — in other words, there must be an "obvious, simple, and direct relation" between the intrastate ban and the regulation of interstate ; see also United On its face, a ban on the intrastate cultivation, possession, and distribution of marijuana may be plainly adapted to stopping the interstate flow of marijuana. Unregulated local growers and users could swell both the supply and the demand sides of the interstate marijuana market, making the market more difficult to regulate. Ante, at 12-13, 22 (majority opinion). But respondents do not challenge the CSA on its face. Instead, they challenge it as applied to their conduct. The question is thus whether the intrastate ban is "necessary and proper" as applied to medical marijuana users like respondents.[3] Respondents are not regulable simply because they belong to a large class (local growers and users of marijuana) that *62 Congress might need to reach, if they also belong to a distinct and separable subclass (local growers and users of state-authorized, medical marijuana) that does not undermine the CSA's interstate ban. Ante, at 47-48 The Court of Appeals found that respondents' "limited use is clearly distinct from the broader illicit drug market," because "th[eir] medicinal marijuana is not intended for, nor does it enter, the stream of " If that is generally true of individuals who grow and use marijuana for medical purposes under state law, then even assuming Congress has "obvious" and "plain" reasons why regulating intrastate cultivation and possession is necessary to regulating the interstate drug trade, none of those reasons applies to medical marijuana patients like Monson and Raich. California's Compassionate Use Act sets respondents' conduct apart from other intrastate producers and users of marijuana. The Act channels marijuana use to "seriously ill Californians," Cal. Health & Safety Code Ann. 11362.5(b)(1)(A) and prohibits "the diversion of marijuana for nonmedical purposes," 11362.5(b)(2).[4] California strictly controls the cultivation and possession of marijuana for medical purposes. To be eligible for its program, California requires that a patient have an illness that cannabis can relieve, such as cancer, AIDS, or arthritis, 11362.5(b)(1)(A), and that he obtain a physician's recommendation or approval, 11362.5(d). Qualified patients must provide personal and medical information to obtain medical identification cards, and there is a statewide registry of cardholders. 11362.XXX-XXXXX.76. Moreover, the Medical Board of California has issued guidelines for physicians' cannabis recommendations, and it sanctions physicians who do not comply with the guidelines. *63 See, e. g., This class of intrastate users is therefore distinguishable from others. We normally presume that States enforce their own laws, and there is no reason to depart from that presumption here: Nothing suggests that California's controls are ineffective. The scant evidence that exists suggests that few people — the vast majority of whom are aged 40 or older — register to use medical marijuana. General Accounting Office, Marijuana: Early Experiences with Four States' Laws That Allow Use for Medical Purposes 22-23 http://www. gao.gov/new.items/d03189.pdf (all Internet materials as visited June 3, 2005, and available in Clerk of Court's case file). In part because of the low incidence of medical marijuana use, many law enforcement officials report that the introduction of medical marijuana laws has not affected their law enforcement efforts. These controls belie the Government's assertion that placing medical marijuana outside the CSA's reach "would prevent effective enforcement of the interstate ban on drug trafficking." Brief for Petitioners 33. Enforcement of the CSA can continue as it did prior to the Compassionate Use Act. Only now, a qualified patient could avoid arrest or prosecution by presenting his identification card to law enforcement officers. In the event that a qualified patient is arrested for possession or his cannabis is seized, he could seek to prove as an affirmative defense that, in conformity with state law, he possessed or cultivated small quantities of marijuana intrastate solely for personal medical use. ; Moreover, under the CSA, certain drugs that present a high risk of abuse and addiction but that nevertheless have an accepted medical use — drugs like morphine *64 and amphetamines — are available by prescription. 21 U.S. C. 812(b)(2)(A)-(B); 21 CFR 1308.12 No one argues that permitting use of these drugs under medical supervision has undermined the CSA's restrictions. But even assuming that States' controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. Executive Office of the President, Office of Nat. Drug Control Policy, Marijuana Fact Sheet 5 http://www. whitehousedrugpolicy.gov/publications/factsht/marijuana/ index.html. It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug To be sure, Congress declared that state policy would disrupt federal law enforcement. It believed the across-the-board ban essential to policing interstate drug trafficking. 21 U.S.C. 801(6). But as JUSTICE O'CONNOR points out, Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power. Ante, at 53-55 (dissenting opinion). Congress cannot define the scope of its own power merely by declaring the necessity of its enactments. In sum, neither in enacting the CSA nor in defending its application to respondents has the Government offered any obvious reason why banning medical marijuana use is necessary to stem the tide of interstate drug trafficking. Congress' goal of curtailing the interstate drug trade would not plainly be thwarted if it could not apply the CSA to patients like Monson and Raich. That is, unless Congress' aim is really to exercise police power of the sort reserved to the States in order to eliminate even the intrastate possession and use of marijuana. 2 Even assuming the CSA's ban on locally cultivated and consumed marijuana is "necessary," that does not mean it is *65 also "proper." The means selected by Congress to regulate interstate commerce cannot be "prohibited" by, or inconsistent with the "letter and spirit" of, the Constitution. McCulloch, 4 Wheat., In I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the 600 This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers — as expanded by the Necessary and Proper Clause — have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to "appropriat[e] state police powers under the guise of regulating " United Even if Congress may regulate purely intrastate activity when essential to exercising some enumerated power, see 9 Wall., at ; but see Barnett, The Original Meaning of the Necessary and Proper Clause, Congress may not use its incidental authority to subvert basic principles of federalism and dual sovereignty. ; ; ; The Federalist No. 33, pp. 204-205 (J. Cooke ed. 1961) (A. Hamilton) (hereinafter The Federalist). *66 Here, Congress has encroached on States' traditional police powers to define the criminal law and to protect the health, safety, and welfare of their ; Hillsborough Further, the Government's rationale — that it may regulate the production or possession of any commodity for which there is an interstate market — threatens to remove the remaining vestiges of States' traditional police powers. See Brief for Petitioners 21-22; cf. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L. J. 825, 826, 841 (describing both the relative recency of a large percentage of federal crimes and the lack of a relationship between some of these crimes and interstate commerce). This would convert the Necessary and Proper Clause into precisely what Chief Justice Marshall did not envision, a "pretext for the accomplishment of objects not intrusted to the government." McCulloch, *67 II The majority advances three reasons why the CSA is a legitimate exercise of Congress' authority under the Commerce Clause: First, respondents' conduct, taken in the aggregate, may substantially affect interstate commerce, ante, at 22; second, regulation of respondents' conduct is essential to regulating the interstate marijuana market, ante, at 24-25; and, third, regulation of respondents' conduct is incidental to regulating the interstate marijuana market, ante, at 22. JUSTICE O'CONNOR explains why the majority's reasons cannot be reconciled with our recent Commerce Clause jurisprudence. The majority's justifications, however, suffer from even more fundamental flaws. A The majority holds that Congress may regulate intrastate cultivation and possession of medical marijuana under the Commerce Clause, because such conduct arguably has a substantial effect on interstate The majority's decision is further proof that the "substantial effects" test is a "rootless and malleable standard" at odds with the constitutional design. at The majority's treatment of the substantial effects test is rootless, because it is not tethered to either the Commerce Clause or the Necessary and Proper Clause. Under the Commerce Clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce, any more than activities that do not fall within, but that affect, the subjects of its other Article I powers. Whatever additional latitude the Necessary and Proper Clause the question is whether Congress' legislation is essential to the regulation of interstate commerce itself — not whether the legislation extends only to economic *68 activities that substantially affect interstate ; ante, at 37 (SCALIA, J., concurring in judgment). The majority's treatment of the substantial effects test is malleable, because the majority expands the relevant conduct. By defining the class at a high level of generality (as the intrastate manufacture and possession of marijuana), the majority overlooks that individuals authorized by state law to manufacture and possess medical marijuana exert no demonstrable effect on the interstate drug The majority ignores that whether a particular activity substantially affects interstate commerce — and thus comes within Congress' reach on the majority's approach — can turn on a number of objective factors, like state action or features of the regulated activity itself. Ante, at 47-48 For instance, here, if California and other States are effectively regulating medical marijuana users, then these users have little effect on the interstate drug trade.[6] The substantial effects test is easily manipulated for another reason. This Court has never held that Congress can *69 regulate noneconomic activity that substantially affects interstate 529 U. S., at ; at To evade even that modest restriction on federal power, the majority defines economic activity in the broadest possible terms as the "`the production, distribution, and consumption of commodities.'"[7]Ante, at 25 (quoting Webster's Third New International Dictionary 720 (1966) (hereinafter Webster's 3d)). This carves out a vast swath of activities that are subject to federal regulation. See ante, at 49-50 If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison's assurance to the people of New York that the "powers delegated" to the Federal Government are "few and defined," while those of the States are "numerous and indefinite." The Federalist No. 45, at 313 (J. Madison). Moreover, even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.[8] The majority's opinion *70 only illustrates the steady drift away from the text of the Commerce Clause. There is an inexorable expansion from "`[c]ommerce,'" ante, at 5, to "commercial" and "economic" activity, ante, at 23, and finally to all "production, distribution, and consumption" of goods or services for which there is an "established interstate market," ante, at 26. Federal power expands, but never contracts, with each new locution. The majority is not interpreting the Commerce Clause, but rewriting it. The majority's rewriting of the Commerce Clause seems to be rooted in the belief that, unless the Commerce Clause covers the entire web of human activity, Congress will be left powerless to regulate the national economy effectively. Ante, at 18-19; -574 The interconnectedness of economic activity is not a modern phenomenon unfamiliar to the Framers. ; Letter from J. Madison to S. Roane in 3 The Founders' Constitution 259-260 (P. Kurland & R. Lerner eds. 1987). Moreover, the Framers understood what the majority does not appear to fully appreciate: There is a danger to concentrating too much, as well as too little, power in the Federal Government. This Court has carefully avoided stripping Congress of its ability to regulate interstate commerce, but it has casually allowed the Federal Government to strip States of their ability to regulate intrastate commerce — not to mention a host of local activities, like mere drug possession, that are not commercial. One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that "`[t]he Constitution created a Federal Government of limited powers.'" New 505 U.S. 1, That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may regulate interstate commerce — not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate B The majority also inconsistently contends that regulating respondents' conduct is both incidental and essential to a comprehensive legislative scheme. Ante, at 22, 24-25. I have already explained why the CSA's ban on local activity is not However, the majority further claims that, because the CSA covers a great deal of interstate commerce, it "is of no moment" if it also "ensnares some purely intrastate activity." Ante, at 22. So long as Congress casts its net broadly over an interstate market, according to the majority, it is free to regulate interstate and intrastate activity alike. This cannot be justified under either the Commerce Clause or the Necessary and Proper Clause. If the activity is purely intrastate, then it may not be regulated under the Commerce Clause. And if the regulation of the intrastate activity is purely incidental, then it may not be regulated under the Necessary and Proper Clause. Nevertheless, the majority terms this the "pivotal' distinction between the present case and and Ante, at 23. In and the parties asserted facial challenges, claiming "that a particular statute or provision fell outside Congress' commerce power in its entirety." Ante, at 23. Here, by contrast, respondents claim only that the CSA falls outside Congress' commerce power as applied *72 to their individual conduct. According to the majority, while courts may set aside whole statutes or provisions, they may not "excise individual applications of a concededly valid statutory scheme." Ante, at 23; see also ; It is true that if respondents' conduct is part of a "class of activities and that class is within the reach of federal power," at then respondents may not point to the de minimis effect of their own personal conduct on the interstate drug market, Ante, at 47 But that begs the question at issue: whether respondents' "class of activities" is "within the reach of federal power," which depends in turn on whether the class is defined at a low or a high level of If medical marijuana patients like Monson and Raich largely stand outside the interstate drug market, then courts must excise them from the CSA's coverage. Congress expressly provided that if "a provision [of the CSA] is held invalid in one of more of its applications, the provision shall remain in effect in all its valid applications that are severable." 21 U.S. C. 901 (emphasis added); see also United Even in the absence of an express severability provision, it is implausible that this Court could set aside entire portions of the United States Code as outside Congress' power in and but it cannot engage in the more restrained practice of invalidating particular applications of the CSA that are beyond Congress' power. This Court has regularly entertained as-applied challenges under constitutional provisions, see United including the Commerce Clause, see ; Heart of Atlanta *73 Motel, ; There is no reason why, when Congress exceeds the scope of its commerce power, courts may not invalidate Congress' overreaching on a case-by-case basis. The CSA undoubtedly regulates a great deal of interstate commerce, but that is no license to regulate conduct that is neither interstate nor commercial, however minor or incidental. If the majority is correct that and are distinct because they were facial challenges to "particular statute[s] or provision[s]," ante, at 23, then congressional power turns on the manner in which Congress packages legislation. Under the majority's reasoning, Congress could not enact — either as a single-subject statute or as a separate provision in the CSA — a prohibition on the intrastate possession or cultivation of marijuana. Nor could it enact an intrastate ban simply to supplement existing drug regulations. However, that same prohibition is perfectly constitutional when integrated into a piece of legislation that reaches other regulable conduct. -601 Finally, the majority's view — that because some of the CSA's applications are constitutional, they must all be constitutional — undermines its reliance on the substantial effects test. The intrastate conduct swept within a general regulatory scheme may or may not have a substantial effect on the relevant interstate "[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on " The breadth of legislation that Congress enacts says nothing about whether the intrastate activity substantially affects interstate commerce, let alone whether it is necessary to the scheme. Because medical marijuana users in California and elsewhere are not placing substantial amounts of cannabis *74 into the stream of interstate commerce, Congress may not regulate them under the substantial effects test, no matter how broadly it drafts the CSA. * * * The majority prevents States like California from devising drug policies that they have concluded provide much-needed respite to the seriously ill. It does so without any serious inquiry into the necessity for federal regulation or the propriety of "displac[ing] state regulation in areas of traditional state concern," The majority's rush to embrace federal power "is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union." United Our federalist system, properly understood, allows California and a growing number of other States to decide for themselves how to safeguard the health and welfare of their citizens. I would affirm the judgment of the Court of Appeals. I respectfully dissent.

Justice Ginsburg

majority

NationsBank of NC, NA v. Variable Annuity Life Ins. Co.

1995-01-18

https://www.courtlistener.com/opinion/117891/nationsbank-of-nc-na-v-variable-annuity-life-ins-co/

https://www.courtlistener.com/api/rest/v3/clusters/117891/

1994-016

These consolidated cases present the question whether national banks may serve as agents in the sale of annuities. The Comptroller of the Currency, charged by Congress with superintendence of national banks, determined that federal law permits such annuity sales as a service to bank customers. Specifically, the Comptroller considered the sales at issue "incidental" to "the business of banking" under the National Bank Act, Rev. Stat. § 5136, as amended, 12 U.S. C. § 24 Seventh (1988 ed. and Supp. V). The Comptroller further concluded that annuities are not "insurance" within the meaning of § 92; that provision, by expressly authorizing banks in towns of no more than 5,000 people to sell insurance, arguably implies that banks in larger towns may not sell insurance. The United States District Court for the Southern District of Texas upheld the Comptroller's conclusions as a permissible reading of the National Bank Act, but the United States Court of Appeals for the Fifth Circuit reversed. We are satisfied that the Comptroller's construction of the Act is reasonable and therefore warrants judicial deference. Accordingly, we reverse the judgment of the Court of Appeals. I Petitioner NationsBank of North Carolina, N. A., a national bank based in Charlotte, and its brokerage subsidiary sought permission from the Comptroller of the Currency, pursuant to 12 CFR § 5.34 (1994), for the brokerage subsidiary to act as an agent in the sale of annuities. Annuities are contracts under which the purchaser makes one or more premium payments to the issuer in exchange for a series of payments, which continue either for a fixed period or for the life of the purchaser or a designated beneficiary. When a purchaser invests in a "variable" annuity, the purchaser's money is invested in a designated way and payments to the purchaser vary with investment performance. In a classic "fixed" annuity, in contrast, payments do not vary. Under *255 the contracts NationsBank proposed to sell, purchasers could direct their payments to a variable, fixed, or hybrid account, and would be allowed periodically to modify their choice. The issuers would be various insurance companies. See Letter from J. Michael Shepherd, Senior Deputy Comptroller, to Robert M. Kurucza (Mar. 21, 1990), App. to Pet. for Cert. in No. 93-1612, pp. 35a—36a (Comptroller's Letter). The Comptroller granted NationsBank's application. He concluded that national banks have authority to broker annuities within "the business of banking" under 12 U.S. C. § 24 Seventh. He further concluded that § 92, addressing insurance sales by banks in towns with no more than 5,000 people, did not impede his approval; for purposes of that provision, the Comptroller explained, annuities do not rank as "insurance." See Comptroller's Letter 41a—47a. Respondent Variable Annuity Life Insurance Co. (VALIC), which sells annuities, challenged the Comptroller's decision. VALIC filed suit in the United States District Court for the Southern District of Texas seeking declaratory and injunctive relief pursuant to the Administrative Procedure Act, 5 U.S. C. § 706(2)(A), and 28 U.S. C. §§ 2201, 2202 (1988 ed. and Supp. V). The District Court granted summary judgment in favor of the Comptroller and NationsBank. Variable Annuity Life Ins. Co. v. Clarke, 786 F. Supp. 639 (1991). The United States Court of Appeals for the Fifth Circuit reversed. Variable Annuity Life Ins. Co. v. Clarke, 998 F.2d 1295 (1993). Relying on its decision in Saxon v. Georgia Assn. of Independent Ins. Agents, Inc., 399 F.2d 1010 (1968), the Fifth Circuit first held that § 92 bars banks not located in small towns from selling insurance, and then rejected the Comptroller's view that annuities are not insurance for purposes of § 92. See 998 F.2d, at 1298-1302. Four judges dissented from the failure of the court to grant rehearing en banc. The dissenters maintained that the panel had not accorded due deference to the Comptroller's reasonable statutory interpretations. Variable Annu- *256 ity Life Ins. Co. v. Clark[e], 13 F.3d 833, 837-838 (CA5 1994).[1] We granted certiorari. 511 U.S. 1141 (1994). II A Authorizing national banks to "carry on the business of banking," the National Bank Act provides that such banks shall have power— "To exercise . . . all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes . . . . The business of dealing in securities and stock by the [bank] shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and the [bank] shall not underwrite any issue of securities or stock . . . ." 12 U.S. C. § 24 Seventh (1988 ed. and Supp. V). As the administrator charged with supervision of the National Bank Act, see §§ 1, 26-27, 481, the Comptroller bears primary responsibility for surveillance of "the business of banking" authorized by § 24 Seventh. We have reiterated: "`It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of banking laws to an extent that warrants the invocation of this principle with *257 respect to his deliberative conclusions as to the meaning of these laws.' " Clarke v. Securities Industry Assn., 479 U.S. 388, 403-404 (1987) (quoting Investment Com- pany Institute v. Camp, 401 U.S. 617, 626-627 (1971)). Under the formulation now familiar, when we confront an expert administrator's statutory exposition, we inquire first whether "the intent of Congress is clear" as to "the precise question at issue." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). If so, "that is the end of the matter." Ibid. But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id., at 843. If the administrator's reading fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, we give the administrator's judgment "controlling weight." Id., at 844. In authorizing NationsBank to broker annuities, the Comptroller invokes the power of banks to "broker a wide variety of financial investment instruments," Comptroller's Letter 38a, which the Comptroller considers "part of [banks'] traditional role as financial intermediaries," ibid., and therefore an "incidental powe[r] . . . necessary to carry on the business of banking." 12 U.S. C. § 24 Seventh; see also Interpretive Letter No. 494 (Dec. 20, 1989) (discussing features of financial investment instruments brokerage that bring this activity within the "business of banking") (cited in Comptroller's Letter 38a). The Comptroller construes the § 24 Seventh authorization of "incidental powers . . . necessary to carry on the business of banking" as an independent grant of authority; he reads the specific powers set forth thereafter as exemplary, not exclusive. VALIC argues that the Comptroller's interpretation is contrary to the clear intent of Congress because the banking power on which the Comptroller relies—"broker[ing] financial investment instruments"—is not specified in § 24 Seventh. *258 Brief for Respondent 35-45. According to VALIC, the five specific activities listed in § 24 Seventh after the words "business of banking" are exclusive—banks are confined to these five activities and to endeavors incidental thereto. Id., at 35-36. VALIC thus attributes no independent significance to the words "business of banking." We think the Comptroller better comprehends the Act's terms. The second sentence of § 24 Seventh, in limiting banks' "dealing in securities," presupposes that banks have authority not circumscribed by the five specifically listed activities. Congress' insertion of the limitation decades after the Act's initial adoption makes sense only if banks already had authority to deal in securities, authority presumably encompassed within the "business of banking" language which dates from 1863. VALIC argues, however, that the limitation was imposed by the Glass-Steagall Act of 1933, and that the power Glass-Steagall presupposed was specifically granted in the McFadden Act of 1927. Brief for Respondent 46. While the statute's current wording derives from the Glass-Steagall Act, see Act of June 16, 1933, ch. 89, § 16, 48 Stat. 184, the earlier McFadden Act does not bolster VALIC's case, for that Act, too, limited an activity already part of the business national banks did. See Act of Feb. 25, 1927, § 2(b), 44 Stat. 1226 ("Provided, That the business of buying and selling investment securities shall hereinafter be limited to buying and selling without recourse . . . ."); see also Clarke v. Securities Industry Assn., 479 U. S., at 407— 408 (even before the McFadden Act, banks conducted securities transactions on a widespread basis); 2 F. Redlich, The Molding of American Banking: Men and Ideas, pt. 2, pp. 389— 393 (1951) (describing securities activities of prominent early national banks).[2] *259 B As we have just explained, the Comptroller determined, in accord with the legislature's intent, that "the business of banking" described in § 24 Seventh covers brokerage of financial investment instruments, and is not confined to the examples specifically enumerated. He then reasonably concluded that the authority to sell annuities qualifies as part of, or incidental to, the business of banking. National banks, the Comptroller observed, are authorized to serve as agents for their customers in the purchase and sale of various financial investment instruments, Comptroller's Letter 38a,[3] and annuities are widely recognized as just such investment products. See D. Shapiro & T. Streiff, Annuities 7 (1992) & "[a]nnuities (in contrast to life insurance, . . . are primarily investment products"); 1 J. Appleman & J. Appleman, Insurance Law and Practice § 84, p. 295 (1981) ("Annuity contracts must . . . be recognized as investments rather than as insurance."). By making an initial payment in exchange for a future income stream, the customer is deferring consumption, setting aside money for retirement, future expenses, or a rainy day. For her, an annuity is like putting money in a bank account, a debt instrument, or a mutual fund. Offering bank accounts and acting as agent in the sale of debt instruments and mutual funds are familiar parts of the business of banking. See, e. g., Securities Industry Assn. v. Board of Governors, FRS, 468 U.S. 207, 215 (1984) ("Banks long have arranged the purchase and sale of securities as an accommodation to their customers."); First Nat. Bank of Hartford v. Hartford, 273 U.S. 548, 559-560 (1927) (banks have authority *260 to sell mortgages and other debt instruments they have originated or acquired by discount). In sum, modern annuities, though more sophisticated than the standard savings bank deposits of old, answer essentially the same need. By providing customers with the opportunity to invest in one or more annuity options, banks are essentially offering financial investment instruments of the kind congressional authorization permits them to broker. Hence, the Comptroller reasonably typed the permission NationsBank sought as an "incidental powe[r] . . . necessary to carry on the business of banking."[4] III A In the alternative, VALIC argues that 12 U.S. C. § 92 (1988 ed., Supp. V) bars NationsBank from selling annuities as agent. That section provides: "In addition to the powers now vested by law in [national banks] any such [bank] located and doing business in any place the population of which does not exceed five thousand inhabitants . . . may . . . act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company . . . ." The parties disagree about whether § 92, by negative implication, precludes national banks located in places more populous than 5,000 from selling insurance. We do not reach *261 this question because we accept the Comptroller's view that, for the purpose at hand, annuities are properly classified as investments, not "insurance." Again, VALIC contends that the Comptroller's determination is contrary to the plain intent of Congress, or else is unreasonable. In support of its position that annuities are insurance, VALIC notes first that annuities traditionally have been sold by insurance companies. But the sale of a product by an insurance company does not inevitably render the product insurance. For example, insurance companies have long offered loans on the security of life insurance, see 3 Appleman & Appleman, Insurance Law and Practice § 1731, p. 562 (1967), but a loan does not thereby become insurance. VALIC further asserts that most States have regulated annuities as insurance and that Congress intended to define insurance under § 92 by reference to state law. Treatment of annuities under state law, however, is contextual. States generally classify annuities as insurance when defining the powers of insurance companies and state insurance regulators. See, e. g., 998 F. 2d, at 1300, n. 2 (citing statutes). But in diverse settings, States have resisted lump classification of annuities as insurance. See, e. g., In re New York State Assn. of Life Underwriters, Inc. v. New York State Banking Dept., 83 N.Y. 2d 353, 363, 632 N.E.2d 876, 881 (1994) (rejecting "assertion that annuities are insurance which [statechartered] banks are not authorized to sell," even though state insurance law "includes `annuities' in its description of `kinds of insurance authorized' "); In re Estate of Rhodes, 197 Misc. 232, 237, 94 N. Y. S. 2d 406, 411 (Surr. Ct. 1949) (annuity contracts do not qualify for New York estate tax exemption applicable to insurance); Commonwealth v. Metropolitan Life Ins. Co., 254 Pa. 510, 513-516, 98 A. 1072, 1073 (1916) (annuities are not insurance for purposes of tax that insurance companies pay on insurance premiums received within *262 the State); State ex rel. Equitable Life Assurance Soc. of United States v. Ham, 54 Wyo. 148, 159, 88 P.2d 484, 488 (1939) (same). As our decisions underscore, a characterization fitting in certain contexts may be unsuitable in others. See, e. g., Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) ("meaning [of words] well may vary to meet the purposes of the law"; courts properly give words "the meaning which the legislature intended [they] should have in each instance"); cf. Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). Moreover, the federal banking law does not plainly require automatic reference to state law here. The Comptroller has concluded that the federal regime is best served by classifying annuities according to their functional characteristics. Congress has not ruled out that course, see Chevron, 467 U. S., at 842; courts, therefore, have no cause to dictate to the Comptroller the state-law constraint VALIC espouses. VALIC further argues that annuities functionally resemble life insurance because some annuities place mortality risk on the parties. Under a classic fixed annuity, the purchaser pays a sum certain and, in exchange, the issuer makes periodic payments throughout, but not beyond, the life of the purchaser. In pricing such annuities, issuers rely on actuarial assumptions about how long purchasers will live. While cognizant of this similarity between annuities and insurance, the Comptroller points out that mortality risk is a less salient characteristic of contemporary products. Many annuities currently available, both fixed and variable, do not feature a life term. Instead they provide for payments over a term of years; if the purchaser dies before the term ends, *263 the balance is paid to the purchaser's estate. Moreover, the presence of mortality risk does not necessarily qualify an investment as "insurance" under § 92. For example, VALIC recognizes that a life interest in real property is not insurance, although it imposes a mortality risk on the purchaser. Tr. of Oral Arg. 42. Some conventional debt instruments similarly impose mortality risk. See Note, Reverse Annuity Mortgages and the Due-on-Sale Clause, 32 Stan. L. Rev. 143, 145-151 (1979). B VALIC also charges the Comptroller with inconsistency. As evidence, VALIC refers to a 1978 letter from a member of the Comptroller's staff describing annuity investments as insurance arrangements. Brief for Respondent 16-17; see Letter from Charles F. Byrd, Assistant Director, Legal Advisory Services Division, Office of the Comptroller of the Currency (June 16, 1978), App. to Brief in Opposition 1a—2a (Byrd Letter). We note, initially, that the proposal disfavored in the 1978 letter did not clearly involve a bank selling annuities as an agent, rather than as a principal. See Byrd Letter 1a ("[T]he bank would purchase a group annuity policy from an insurer and then sell annuity contracts as investments in trust accounts."). Furthermore, unlike the Comptroller's letter to NationsBank here, the 1978 letter does not purport to represent the Comptroller's position. Compare Byrd Letter 1a ("It is my opinion . . . ") with Comptroller's Letter 35a ("The OCC's legal position on this issue was announced in a [prior 1990 letter]. Since I find neither policy nor supervisory reasons to object to this proposal, the Subsidiary may proceed."). Finally, any change in the Comptroller's position might reduce, but would not eliminate, the deference we owe his reasoned determinations. See Good Samaritan Hospital v. Shalala, 508 U.S. 402, 417 (1993) (quoting NLRB v. Iron Workers, 434 U.S. 335, 351 (1978)). The Comptroller's classification of annuities, based on the tax deferral and investment features that distinguish them *264 from insurance, in short, is at least reasonable. See Comptroller's Letter 44a. A key feature of insurance is that it indemnifies loss. See Black's Law Dictionary 802 (6th ed. 1990) (first definition of insurance is "contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils"). As the Comptroller observes, annuities serve an important investment purpose and are functionally similar to other investments that banks typically sell. See supra, at 259-260. And though fixed annuities more closely resemble insurance than do variable annuities, fixed annuities too have significant investment features and are functionally similar to debt instruments. Moreover, mindful that fixed annuities are often packaged with variable annuities, the Comptroller reasonably chose to classify the two together. * * * We respect as reasonable the Comptroller's conclusion that brokerage of annuities is an "incidental powe[r] . . . necessary to carry on the business of banking." We further defer to the Comptroller's reasonable determination that 12 U.S. C. § 92 is not implicated because annuities are not insurance within the meaning of that section. Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is Reversed.

These consolidated cases present the question whether national banks may serve as agents in the sale of annuities. The Comptroller of the Currency, charged by Congress with superintendence of national banks, determined that federal law permits such annuity sales as a service to bank customers. Specifically, the Comptroller considered the sales at issue "incidental" to "the business of banking" under the National Bank Act, Rev. Stat. 5136, as amended, 12 U.S. C. 24 Seventh (1988 ed. and Supp. V). The Comptroller further concluded that annuities are not "insurance" within the meaning of 92; that provision, by expressly authorizing banks in towns of no more than 5,000 people to sell insurance, arguably implies that banks in larger towns may not sell insurance. The United States District Court for the Southern District of Texas upheld the Comptroller's conclusions as a permissible reading of the National Bank Act, but the United States Court of Appeals for the Fifth Circuit reversed. We are satisfied that the Comptroller's construction of the Act is reasonable and therefore warrants judicial deference. Accordingly, we reverse the judgment of the Court of Appeals. I Petitioner NationsBank of North Carolina, N. A., a national bank based in Charlotte, and its brokerage subsidiary sought permission from the Comptroller of the Currency, pursuant to 12 CFR 5.34 for the brokerage subsidiary to act as an agent in the sale of annuities. Annuities are contracts under which the purchaser makes one or more premium payments to the issuer in exchange for a series of payments, which continue either for a fixed period or for the life of the purchaser or a designated beneficiary. When a purchaser invests in a "variable" annuity, the purchaser's money is invested in a designated way and payments to the purchaser vary with investment performance. In a classic "fixed" annuity, in contrast, payments do not vary. Under *255 the contracts NationsBank proposed to sell, purchasers could direct their payments to a variable, fixed, or hybrid account, and would be allowed periodically to modify their choice. The issuers would be various insurance companies. See Letter from J. Michael Shepherd, Senior Deputy Comptroller, to Robert M. Kurucza (Mar. 21, 1990), App. to Pet. for Cert. in No. 93-1612, pp. 35a—36a (Comptroller's Letter). The Comptroller granted NationsBank's application. He concluded that national banks have authority to broker annuities within "the business of banking" under 12 U.S. C. 24 Seventh. He further concluded that 92, addressing insurance sales by banks in towns with no more than 5,000 people, did not impede his approval; for purposes of that provision, the Comptroller explained, annuities do not rank as "insurance." See Comptroller's Letter 41a—47a. Respondent Variable Annuity Life Insurance Co. (VALIC), which sells annuities, challenged the Comptroller's decision. VALIC filed suit in the United States District Court for the Southern District of Texas seeking declaratory and injunctive relief pursuant to the Administrative Procedure Act, 5 U.S. C. 706(2)(A), and 28 U.S. C. 2201, 2202 (1988 ed. and Supp. V). The District Court granted summary judgment in favor of the Comptroller and NationsBank. Variable Annuity Life Ins. The United States Court of Appeals for the Fifth Circuit reversed. Variable Annuity Life Ins. Relying on its decision in the Fifth Circuit first held that 92 bars banks not located in small towns from selling insurance, and then rejected the Comptroller's view that annuities are not insurance for purposes of 92. See -1302. Four judges dissented from the failure of the court to grant rehearing en banc. The dissenters maintained that the panel had not accorded due deference to the Comptroller's reasonable statutory interpretations. Variable Annu- *256 ity Life Ins.[1] We granted certiorari. II A Authorizing national banks to "carry on the business of banking," the National Bank Act provides that such banks shall have power— "To exercise all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin, and bullion; by loaning money on personal security; and by obtaining, issuing, and circulating notes The business of dealing in securities and stock by the [bank] shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account, and the [bank] shall not underwrite any issue of securities or stock" 12 U.S. C. 24 Seventh (1988 ed. and Supp. V). As the administrator charged with supervision of the National Bank Act, see 1, 26-27, 481, the Comptroller bears primary responsibility for surveillance of "the business of banking" authorized by 24 Seventh. We have reiterated: "`It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of banking laws to an extent that warrants the invocation of this principle with *257 respect to his deliberative conclusions as to the meaning of these laws.' " Under the formulation now familiar, when we confront an expert administrator's statutory exposition, we inquire first whether "the intent of Congress is clear" as to "the precise question at issue." U. S. A. If so, "that is the end of the matter." But "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." If the administrator's reading fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, we give the administrator's judgment "controlling weight." In authorizing NationsBank to broker annuities, the Comptroller invokes the power of banks to "broker a wide variety of financial investment instruments," Comptroller's Letter 38a, which the Comptroller considers "part of [banks'] traditional role as financial intermediaries," ibid., and therefore an "incidental powe[r] necessary to carry on the business of banking." 12 U.S. C. 24 Seventh; see also Interpretive Letter No. 494 (Dec. 20, 1989) (discussing features of financial investment instruments brokerage that bring this activity within the "business of banking") (cited in Comptroller's Letter 38a). The Comptroller construes the 24 Seventh authorization of "incidental powers necessary to carry on the business of banking" as an independent grant of authority; he reads the specific powers set forth thereafter as exemplary, not exclusive. VALIC argues that the Comptroller's interpretation is contrary to the clear intent of Congress because the banking power on which the Comptroller relies—"broker[ing] financial investment instruments"—is not specified in 24 Seventh. *258 Brief for Respondent 35-45. According to VALIC, the five specific activities listed in 24 Seventh after the words "business of banking" are exclusive—banks are confined to these five activities and to endeavors incidental thereto. VALIC thus attributes no independent significance to the words "business of banking." We think the Comptroller better comprehends the Act's terms. The second sentence of 24 Seventh, in limiting banks' "dealing in securities," presupposes that banks have authority not circumscribed by the five specifically listed activities. Congress' insertion of the limitation decades after the Act's initial adoption makes sense only if banks already had authority to deal in securities, authority presumably encompassed within the "business of banking" language which dates from 1863. VALIC argues, however, that the limitation was imposed by the Glass-Steagall Act of 1933, and that the power Glass-Steagall presupposed was specifically granted in the McFadden Act of 1927. Brief for Respondent 46. While the statute's current wording derives from the Glass-Steagall Act, see Act of June 16, 1933, ch. 89, 16, the earlier McFadden Act does not bolster VALIC's case, for that Act, too, limited an activity already part of the business national banks did. See Act of Feb. 25, 1927, 2(b), ; see also — 408 (even before the McFadden Act, banks conducted securities transactions on a widespread basis); 2 F. Redlich, The Molding of American Banking: Men and Ideas, pt. 2, pp. 389— 393 (1951) (describing securities activities of prominent early national banks).[2] *259 B As we have just explained, the Comptroller determined, in accord with the legislature's intent, that "the business of banking" described in 24 Seventh covers brokerage of financial investment instruments, and is not confined to the examples specifically enumerated. He then reasonably concluded that the authority to sell annuities qualifies as part of, or incidental to, the business of banking. National banks, the Comptroller observed, are authorized to serve as agents for their customers in the purchase and sale of various financial investment instruments, Comptroller's Letter 38a,[3] and annuities are widely recognized as just such investment products. See D. Shapiro & T. Streiff, Annuities 7 (1992) & "[a]nnuities (in contrast to life insurance, are primarily investment products"); 1 J. Appleman & J. Appleman, Insurance Law and Practice 84, p. 295 (1981) ("Annuity contracts must be recognized as investments rather than as insurance."). By making an initial payment in exchange for a future income stream, the customer is deferring consumption, setting aside money for retirement, future expenses, or a rainy day. For her, an annuity is like putting money in a bank account, a debt instrument, or a mutual fund. Offering bank accounts and acting as agent in the sale of debt instruments and mutual funds are familiar parts of the business of banking. See, e. g., Securities Industry v. Board of Governors, FRS, ; First Nat. Bank of In sum, modern annuities, though more sophisticated than the standard savings bank deposits of old, answer essentially the same need. By providing customers with the opportunity to invest in one or more annuity options, banks are essentially offering financial investment instruments of the kind congressional authorization permits them to broker. Hence, the Comptroller reasonably typed the permission NationsBank sought as an "incidental powe[r] necessary to carry on the business of banking."[4] III A In the alternative, VALIC argues that 12 U.S. C. 92 (1988 ed., Supp. V) bars NationsBank from selling annuities as agent. That section provides: "In addition to the powers now vested by law in [national banks] any such [bank] located and doing business in any place the population of which does not exceed five thousand inhabitants may act as the agent for any fire, life, or other insurance company authorized by the authorities of the State in which said bank is located to do business in said State, by soliciting and selling insurance and collecting premiums on policies issued by such company" The parties disagree about whether 92, by negative implication, precludes national banks located in places more populous than 5,000 from selling insurance. We do not reach *261 this question because we accept the Comptroller's view that, for the purpose at hand, annuities are properly classified as investments, not "insurance." Again, VALIC contends that the Comptroller's determination is contrary to the plain intent of Congress, or else is unreasonable. In support of its position that annuities are insurance, VALIC notes first that annuities traditionally have been sold by insurance companies. But the sale of a product by an insurance company does not inevitably render the product insurance. For example, insurance companies have long offered loans on the security of life insurance, see 3 Appleman & Appleman, Insurance Law and Practice 1731, p. 562 (1967), but a loan does not thereby become insurance. VALIC further asserts that most States have regulated annuities as insurance and that Congress intended to define insurance under 92 by reference to state law. Treatment of annuities under state law, however, is contextual. States generally classify annuities as insurance when defining the powers of insurance companies and state insurance regulators. See, e. g., 998 F. 2d, at 1300, n. 2 (citing statutes). But in diverse settings, States have resisted lump classification of annuities as insurance. See, e. g., In re New York State of Life Underwriters, ; In re Estate of Rhodes, ; ; State ex rel. Equitable Life Assurance Soc. of United As our decisions underscore, a characterization fitting in certain contexts may be unsuitable in others. See, e. g., Atlantic Cleaners & Dyers, ; cf. Cook, "Substance" and "Procedure" in the Conflict of Laws, 42 Yale L. J. 333, 337 (1933) ("The tendency to assume that a word which appears in two or more legal rules, and so in connection with more than one purpose, has and should have precisely the same scope in all of them, runs all through legal discussions. It has all the tenacity of original sin and must constantly be guarded against."). Moreover, the federal banking law does not plainly require automatic reference to state law here. The Comptroller has concluded that the federal regime is best served by classifying annuities according to their functional characteristics. Congress has not ruled out that course, see 467 U. S., at ; courts, therefore, have no cause to dictate to the Comptroller the state-law constraint VALIC espouses. VALIC further argues that annuities functionally resemble life insurance because some annuities place mortality risk on the parties. Under a classic fixed annuity, the purchaser pays a sum certain and, in exchange, the issuer makes periodic payments throughout, but not beyond, the life of the purchaser. In pricing such annuities, issuers rely on actuarial assumptions about how long purchasers will live. While cognizant of this similarity between annuities and insurance, the Comptroller points out that mortality risk is a less salient characteristic of contemporary products. Many annuities currently available, both fixed and variable, do not feature a life term. Instead they provide for payments over a term of years; if the purchaser dies before the term ends, *263 the balance is paid to the purchaser's estate. Moreover, the presence of mortality risk does not necessarily qualify an investment as "insurance" under 92. For example, VALIC recognizes that a life interest in real property is not insurance, although it imposes a mortality risk on the purchaser. Tr. of Oral Arg. 42. Some conventional debt instruments similarly impose mortality risk. See Note, Reverse Annuity Mortgages and the Due-on-Sale Clause, B VALIC also charges the Comptroller with inconsistency. As evidence, VALIC refers to a 1978 letter from a member of the Comptroller's staff describing annuity investments as insurance arrangements. Brief for Respondent 16-17; see Letter from Charles F. Byrd, Assistant Director, Legal Advisory Services Division, Office of the Comptroller of the Currency App. to Brief in Opposition 1a—2a (Byrd Letter). We note, initially, that the proposal disfavored in the 1978 letter did not clearly involve a bank selling annuities as an agent, rather than as a principal. See Byrd Letter 1a ("[T]he bank would purchase a group annuity policy from an insurer and then sell annuity contracts as investments in trust accounts."). Furthermore, unlike the Comptroller's letter to NationsBank here, the 1978 letter does not purport to represent the Comptroller's position. Compare Byrd Letter 1a ("It is my opinion ") with Comptroller's Letter 35a ("The OCC's legal position on this issue was announced in a [prior 1990 letter]. Since I find neither policy nor supervisory reasons to object to this proposal, the Subsidiary may proceed."). Finally, any change in the Comptroller's position might reduce, but would not eliminate, the deference we owe his reasoned determinations. See Good Samaritan The Comptroller's classification of annuities, based on the tax deferral and investment features that distinguish them *264 from insurance, in short, is at least reasonable. See Comptroller's Letter 44a. A key feature of insurance is that it indemnifies loss. See Black's Law Dictionary 802 (6th ed. 1990) (first definition of insurance is "contract whereby, for a stipulated consideration, one party undertakes to compensate the other for loss on a specified subject by specified perils"). As the Comptroller observes, annuities serve an important investment purpose and are functionally similar to other investments that banks typically sell. See And though fixed annuities more closely resemble insurance than do variable annuities, fixed annuities too have significant investment features and are functionally similar to debt instruments. Moreover, mindful that fixed annuities are often packaged with variable annuities, the Comptroller reasonably chose to classify the two together. * * * We respect as reasonable the Comptroller's conclusion that brokerage of annuities is an "incidental powe[r] necessary to carry on the business of banking." We further defer to the Comptroller's reasonable determination that 12 U.S. C. 92 is not implicated because annuities are not insurance within the meaning of that section. Accordingly, the judgment of the Court of Appeals for the Fifth Circuit is Reversed.

Justice Alito

majority

Johnson v. Williams

2013-02-20

https://www.courtlistener.com/opinion/820895/johnson-v-williams/

https://www.courtlistener.com/api/rest/v3/clusters/820895/

2012-017

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the circumstances under which a federal habeas court may grant relief to a state prisoner whose claim has already been “adjudicated on the merits in State court.” 28 U.S. C. §2254(d). Specifically, if a claim has been “adjudicated on the merits in State court,” a federal habeas court may not grant relief unless “the adjudication of the claim— “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un- reasonable determination of the facts in light of the evidence presented in the State court proceeding.” Ibid. Because the requirements of §2254(d) are difficult to meet, it is important whether a federal claim was “adjudi- cated on the merits in State court,” and this case requires us to ascertain the meaning of the adjudication-on-the 2 JOHNSON v. WILLIAMS Opinion of the Court merits requirement. This issue arises when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not ex- pressly address the federal claim in question. If this defendant then raises the same claim in a federal habeas proceeding, should the federal court regard the claim as having been adjudicated on the merits by the state court and apply deference under §2254(d)? Or may the federal court assume that the state court simply overlooked the federal claim and proceed to adjudicate the claim de novo, the course taken by the Court of Appeals in the case at hand? We believe that the answer to this question follows logically from our decision in Harrington v. Richter, 562 U.S. ___ (2011). In that case, we held that, when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits. We see no reason why this same rule should not apply when the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding. Applying this rule in the present case, we hold that the federal claim at issue here (a Sixth Amendment jury trial claim) must be presumed to have been adjudicated on the merits by the California courts, that this presumption was not adequately rebutted, that the restrictive standard of review set out in §2254(d)(2) consequently applies, and that under that standard respondent is not entitled to habeas relief. We therefore reverse the judgment of the Court of Appeals. Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court I A In October 1993, respondent Tara Williams took two of her friends for a drive in southern California with the objective of committing a robbery. They stopped at a liquor store in Long Beach, and while Williams waited in the getaway car, her friends stole money from the cash register and fatally shot the store’s owner. Williams then drove one of her friends away, and the other fled on foot. Williams avoided capture for five years but was ultimately apprehended and charged with first-degree murder. At trial, Williams admitted that she had served as the getaway driver but claimed that she did not know that her friends were going to rob the liquor store at the particular time in question. Instead, she contended that the three friends had agreed only that they would “case” the store and would possibly return later that evening to rob it. The State countered that, regardless of whether Williams knew precisely when and where the robbery was to take place, she had agreed to help commit a robbery and that this was sufficient to provide the predicate for felony murder under California law. After deliberating for about three hours, the jury fore- man sent the judge two notes. The first note asked the following question: “ ‘Is it legally permissible for a juror to interpret . . . the jury instructions to mean that the conspiracy should involve a plan to commit a specific robbery ra- ther than a general plan to commit robberies in the future?’ ” Tr. 1247. The second note stated: “I wish to inform you that we have one juror who . . . has expressed an intention to disregard the law . . . and . . . has expressed concern relative to the severity of the charge (first degree murder).” Id., at 1246. 4 JOHNSON v. WILLIAMS Opinion of the Court The judge told the jury that the answer to the question in the first note was “no.” Id., at 1249. Then, over Williams’ objection, the judge briefly questioned the foreman outside the presence of the rest of the jury about the second note. The foreman said that he thought the judge’s answer to the first note might resolve the problem, and the judge instructed the jury to resume its deliberations. The next morning, once again over Williams’ objection, the judge decided to inquire further about the foreman’s second note. On questioning by the judge and lawyers for both parties, the foreman testified that Juror 6 had brought up past instances of jury nullification. The fore- man also expressed doubt about whether Juror 6 was willing to apply the felony-murder rule. The trial judge then ordered questioning of Juror 6, who first denied and then admitted bringing up instances of nullification. Juror 6 also testified that this was a serious case and that he would vote to convict only if he was “very convinced . . . beyond a reasonable doubt.” Id., at 1280. He later clari- fied that in his view “convinced beyond a reasonable doubt” and “very convinced beyond a reasonable doubt” meant the same thing. Id., at 1281. After taking testi- mony from the remaining jurors, who corroborated the foreman’s testimony to varying degrees, the trial judge dis- missed Juror 6 for bias. With an alternate juror in place, the jury convicted Williams of first-degree murder. B On appeal to the California Court of Appeal, Williams argued, among other things, that the discharge of Juror 6 violated both the Sixth Amendment and the California Penal Code, which allows a California trial judge to dis- miss a juror who “upon . . . good cause shown to the court is found to be unable to perform his or her duty.” Cal. Penal Code Ann. §1089 (West 2004). Although Williams’ brief challenged the questioning and dismissal of Juror 6 Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court on both state and federal grounds, it did not clearly distin- guish between these two lines of authority. In a written opinion affirming Williams’ conviction, the California Court of Appeal devoted several pages to discussing the propriety of the trial judge’s decision to dis- miss the juror. People v. Taylor, No. B137365 (Mar. 27, 2001). The court held that Juror 6 had been properly dismissed for bias and quoted this Court’s definition of “impartiality” in United States v. Wood, 299 U.S. 123, 145–146 (1936). But despite its extended discussion of Juror 6’s dismissal and the questioning that preceded it, the California Court of Appeal never expressly acknowl- edged that it was deciding a Sixth Amendment issue. Williams petitioned the California Supreme Court for review, and while her petition was pending, that court decided People v. Cleveland, 25 Cal. 4th 466, 21 P.3d 1225 (2001), which held that a trial court had abused its discre- tion by dismissing for failure to deliberate a juror who appeared to disagree with the rest of the jury about the evidence. The California Supreme Court granted Wil- liams’ petition for review and remanded her case for fur- ther consideration in light of this intervening authority. People v. Taylor, No. S097387 (July 11, 2001). On remand, the California Court of Appeal issued a revised opinion holding that the trial court had not abused its discretion by questioning the jury and dismissing Juror 6. Williams argued that Juror 6—like the holdout juror in Cleveland—was dismissed because he was uncooperative with other jurors who did not share his view of the evi- dence. But the California Court of Appeal disagreed, explaining that Williams’ argument “not only misstate[d] the evidence,” but also “ignore[d] the trial court’s explana- tion that it was discharging Juror No. 6 because he had shown himself to be biased, not because he was failing to deliberate or engaging in juror nullification.” People v. Taylor, No. B137365 (Jan. 18, 2002), App. to Pet. for Cert. 6 JOHNSON v. WILLIAMS Opinion of the Court 105a. As in its earlier opinion, the California Court of Appeal quoted our definition of juror bias in Wood, but the court did not expressly acknowledge that Williams had invoked a federal basis for her argument. Despite that omission, however, Williams did not seek rehearing or other- wise suggest that the court had overlooked her federal claim. Instead, she filed another petition for review in the California Supreme Court, but this time that court denied relief in a one-sentence order. People v. Taylor, No. S104661 (Apr. 10, 2002), App. to Pet. for Cert. 85a. Williams sought but failed to obtain relief through state habeas proceedings, and she then filed a federal habeas petition under 28 U.S. C. §2254. The District Court ap- plied AEDPA’s deferential standard of review for claims previously adjudicated on the merits and denied relief. Williams v. Mitchell, No. 03–2691 (CD Cal., May 30, 2007), App. to Pet. for Cert. 57a. In so holding, the Dis- trict Court adopted a Magistrate Judge’s finding that the evidence “amply support[ed] the trial judge’s determina- tion that good cause existed for the discharge of Juror 6.” Williams v. Mitchell, No. 03–2691 (CD Cal., Mar. 19, 2007), id., at 70a. The Ninth Circuit reversed. Unlike the District Court, the Ninth Circuit declined to apply the deferential stand- ard of review contained in §2254(d). The Ninth Circuit took this approach because it thought it “obvious” that the State Court of Appeal had “overlooked or disregarded” Williams’ Sixth Amendment claim.1 Williams v. Cavazos, 646 F.3d 626, 639 (2011). The Ninth Circuit reasoned that Cleveland, the State Supreme Court decision on —————— 1 Consistent with our decision in Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991), the Ninth Circuit “look[ed] through” the California Supreme Court’s summary denial of Williams’ petition for review and examined the California Court of Appeal’s opinion, the last reasoned state-court decision to address Juror 6’s dismissal. Williams v. Cavazos, 646 F.3d 626, 635 (2011). Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court which the State Court of Appeal had relied, “was not a constitutional decision,” 646 F. 3d, at 640, and the Ninth Circuit attributed no significance to the state court’s cita- tion of our decision in Wood. Reviewing Williams’ Sixth Amendment claim de novo, the Ninth Circuit applied its own precedent and held that the questioning and dismis- sal of Juror 6 violated the Sixth Amendment. 646 F. 3d, at 646–647. We granted the warden’s petition for a writ of certiorari, 565 U. S. ___ (2012), in order to decide whether the Ninth Circuit erred by refusing to afford AEDPA deference to the California Court of Appeal’s decision. II A As noted above, AEDPA sharply limits the circum- stances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was “adjudicated on the merits in State court proceedings.” 28 U.S. C. §2254(d). In Richter, 562 U. S., at ___ (slip op., at 10), we held that §2254(d) “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’ ” Rather, we explained, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id., at ___ (slip op., at 9). Our reasoning in Richter points clearly to the answer to the question presented in the case at hand. Although Richter itself concerned a state-court order that did not address any of the defendant’s claims, we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defend- ant’s claims. There would be a reason for drawing a dis- tinction between these two situations if opinions issued by state appellate courts always separately addressed every 8 JOHNSON v. WILLIAMS Opinion of the Court single claim that is mentioned in a defendant’s papers. If there were such a uniform practice, then federal habeas courts could assume that any unaddressed federal claim was simply overlooked. No such assumption is warranted, however, because it is not the uniform practice of busy state courts to discuss separately every single claim to which a defendant makes even a passing reference. On the contrary, there are several situations in which state courts frequently take a different course. First, there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right. In California, for example, the state constitutional right to be present at trial “ ‘is generally coextensive with’ ” the protections of the Federal Constitu- tion. People v. Butler, 46 Cal. 4th 847, 861, 209 P.3d 596, 606 (2009); see also, e.g., Commonwealth v. Prunty, 462 Mass. 295, 305, n. 14, 968 N.E.2d 361, 371, n. 14 (2012) (standard for racial discrimination in juror selection “ ‘is the same under the Federal Constitution and the [Massa- chusetts] Declaration of Rights’ ”); State v. Krause, 817 N.W.2d 136, 144 (Minn. 2012) (“ ‘The due process protec- tion provided under the Minnesota Constitution is identi- cal to the due proces[s] guaranteed under the Constitution of the United States’ ”); State v. Engelhardt, 280 Kan. 113, 122, 119 P.3d 1148, 1158 (2005) (observing that a Kansas statute is “analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution”). In this situa- tion, a state appellate court may regard its discussion of the state precedent as sufficient to cover a claim based on the related federal right. Second, a state court may not regard a fleeting reference to a provision of the Federal Constitution or federal prece- dent as sufficient to raise a separate federal claim. Federal courts of appeals refuse to take cognizance of arguments Cite as: 568 U. S. ____ (2013) 9 Opinion of the Court that are made in passing without proper development. See, e.g., United States v. Cloud, 680 F.3d 396, 409, n. 7 (CA4 2012); United States v. Mitchell, 502 F.3d 931, 953, n. 2 (CA9 2007); United States v. Charles, 469 F.3d 402, 408 (CA5 2006); Reynolds v. Wagner, 128 F.3d 166, 178 (CA3 1997); Carducci v. Regan, 714 F.2d 171, 177 (CADC 1983). State appellate courts are entitled to follow the same practice. Third, there are instances in which a state court may simply regard a claim as too insubstantial to merit discus- sion. Indeed, the California Court of Appeal has expressly stated that it has no obligation to address claims that lack arguable merit. See People v. Rojas, 118 Cal. App. 3d 278, 290, 173 Cal. Rptr. 91, 93 (1981). That court has ex- plained: “In an era in which there is concern that the quality of justice is being diminished by appellate backlog with its attendant delay, which in turn contributes to a lack of finality of judgment, it behooves us as an appellate court to ‘get to the heart’ of cases presented and dispose of them expeditiously.” Ibid. See also People v. Burke, 18 Cal. App. 72, 79, 122 P. 435, 439 (1912) (“The author of an opinion . . . must follow his own judgment as to the degree of elaboration to be accorded to the treatment of any prop- osition and as to the questions which are worthy of notice at all” (emphasis added)). While it is preferable for an appellate court in a criminal case to list all of the argu- ments that the court recognizes as having been properly presented, see R. Aldisert, Opinion Writing 95–96 (3d ed. 2012), federal courts have no authority to impose manda- tory opinion-writing standards on state courts, see Cole- man v. Thompson, 501 U.S. 722, 739 (1991) (“[W]e have no power to tell state courts how they must write their opinions”). The caseloads shouldered by many state appel- late courts are very heavy,2 and the opinions issued by —————— 2 See, e.g., Judicial Council of California, 2011 Court Statistics Re- 10 JOHNSON v. WILLIAMS Opinion of the Court these courts must be read with that factor in mind. In sum, because it is by no means uncommon for a state court to fail to address separately a federal claim that the court has not simply overlooked, we see no sound reason for failing to apply the Richter presumption in cases like the one now before us. When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption can in some limited circumstances be rebutted. B Not satisfied with a strong but rebuttable presumption, petitioner urges us to make the presumption irrebuttable. Specifically, petitioner contends that a state court must be regarded as having adjudicated a federal claim on the merits if the state court addressed “the substance of [an] asserted trial error.” Brief for Petitioner 27. Suppose, for example, that a defendant claimed in state court that something that occurred at trial violated both a provision of the Federal Constitution and a related provision of state law, and suppose further that the state court, in denying relief, made no reference to federal law. According to —————— port, Statewide Caseload Trends, 2000–2001 Through 2009–2010, p. 15 (observing that in fiscal year 2009–2010, the 105-judge California Court of Appeal produced opinions in 10,270 cases), online at http:// www.courts.ca.gov/documents/2011CourtStatisticsReport.pdf (all Inter- net materials as visited Jan. 24, 2013, and available in Clerk of Court’s case file); In re Certification of Need for Additional Judges, 2012 WL 6619382 (Fla., Dec. 20, 2012) (in fiscal year 2011–2012, Florida’s Second District Court of Appeal received appeals in 6,834 cases); Supreme Court of Ohio, 2011 Ohio Courts Statistical Report, p. 14 (observing that in 2011 the State’s 69 intermediate appellate judges rendered decisions in 7,129 cases), online at http:// www.supremecourt.ohio.gov / publications / annrep / IOCS / 2011OCS.pdf; Court Statistics Project, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads 40 (2012) (noting that in 2010 state appellate courts received appeals in over 270,000 cases). Cite as: 568 U. S. ____ (2013) 11 Opinion of the Court petitioner’s argument, a federal habeas court would be required to proceed on the assumption that the federal claim was adjudicated on the merits. This argument goes too far. To be sure, if the state-law rule subsumes the federal standard—that is, if it is at least as protective as the federal standard—then the federal claim may be regarded as having been adjudicated on the merits. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). But what if, for example, in at least some circumstances the state standard is less protective? Or what if the state standard is quite different from the federal standard, and the defendant’s papers made no effort to develop the basis for the federal claim? What if a provision of the Federal Constitution or a federal prece- dent was simply mentioned in passing in a footnote or was buried in a string cite? In such circumstances, the pre- sumption that the federal claim was adjudicated on the merits may be rebutted—either by the habeas petitioner (for the purpose of showing that the claim should be con- sidered by the federal court de novo) or by the State (for the purpose of showing that the federal claim should be regarded as procedurally defaulted). See Coleman, supra, at 739 (rebuttable presumption of no independent and adequate state ground applies so long as “it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law”). Thus, while the Richter presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable.3 “Per se rules should not be applied . . . in situations where the generalization is incorrect as an empirical matter,” Cole- man, 501 U. S., at 737, and an irrebuttable presumption —————— 3 For example, when a defendant does so little to raise his claim that he fails to “ ‘fairly present’ ” it in “each appropriate state court,” Bald- win v. Reese, 541 U.S. 27, 29 (2004), the Richter presumption is fully rebutted. 12 JOHNSON v. WILLIAMS Opinion of the Court that state courts never overlook federal claims would occasionally miss the mark. The language of 28 U.S. C. §2254(d) makes it clear that this provision applies only when a federal claim was “ad- judicated on the merits in State court.” A judgment is normally said to have been rendered “on the merits” only if it was “delivered after the court . . . heard and evaluated the evidence and the parties’ substantive arguments.” Black’s Law Dictionary 1199 (9th ed. 2009) (emphasis added). And as used in this context, the word “merits” is defined as “[t]he intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form.” Webster’s New International Dictionary 1540 (2d ed. 1954) (emphasis added); see also, e.g., 9 Ox- ford English Dictionary 634 (2d ed. 1989) (“the intrinsic ‘rights and wrongs’ of the matter, in contradistinction to extraneous points such as the competence of the tribunal or the like” (emphasis added)); Random House Dictionary of the English Language 897 (1967) (“the intrinsic right and wrong of a matter, as a law case, unobscured by pro- cedural details, technicalities, personal feelings, etc.” (emphasis added)). If a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter. JUSTICE SCALIA is surely correct that such claims have been adjudicated and present federal questions we may review, post, at 3–4, but it does not follow that they have been adjudicated “on the merits.” By having us neverthe- less apply AEDPA’s deferential standard of review in such cases, petitioner’s argument would improperly excise §2254(d)’s on-the-merits requirement. Nor does petitioner’s preferred approach follow inexora- bly from AEDPA’s deferential architecture. Even while leaving “primary responsibility” for adjudicating federal claims to the States, Woodford v. Visciotti, 537 U.S. 19, 27 (2002) (per curiam), AEDPA permits de novo review in Cite as: 568 U. S. ____ (2013) 13 Opinion of the Court those rare cases when a state court decides a federal claim in a way that is “contrary to” clearly established Supreme Court precedent, see Panetti v. Quarterman, 551 U.S. 930, 953 (2007). When the evidence leads very clearly to the conclusion that a federal claim was inadvertently over- looked in state court, §2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a fed- eral judge. We are not persuaded that applying a rebuttable pre- sumption in this context will be unduly burdensome for federal courts. Before Richter, every Court of Appeals to consider the issue allowed a prisoner to argue that a state court had overlooked his federal claim.4 That approach did not prompt an unmanageable flood of litigation, and we see no reason to fear that it will do so now. III Applying the presumption of merits adjudication to the facts of this case, we hold that the Ninth Circuit erred by finding that the California Court of Appeal overlooked Williams’ Sixth Amendment claim. Several facts make this conclusion inescapable. Most important is the state court’s discussion of Cleve- land, 25 Cal. 4th 466, 21 P.3d 1225, a California Supreme Court decision on which the Court of Appeal solicited briefing. Cleveland held that a California trial court, “if put on notice that a juror is not participating in delib- erations,” may “conduct ‘whatever inquiry is reasonably necessary to determine’ whether such grounds exist and —————— 4 See, e.g., Lyell v. Renico, 470 F.3d 1177, 1181–1182 (CA6 2006); Billings v. Polk, 441 F.3d 238, 252 (CA4 2006); Espy v. Massac, 443 F.3d 1362, 1364–1365, and n. 2 (CA11 2006); Brown v. Luebbers, 371 F.3d 458, 460–461 (CA8 2004) (en banc); Chadwick v. Janecka, 312 F.3d 597, 606 (CA3 2002); Norde v. Keane, 294 F.3d 401, 410 (CA2 2002); Duckett v. Mullin, 306 F.3d 982, 990 (CA10 2002); Fortini v. Murphy, 257 F.3d 39, 47 (CA1 2001). 14 JOHNSON v. WILLIAMS Opinion of the Court . . . discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” Id., at 484, 21 P. 3d, at 1237 (citations omitted). The Cleveland court acknowledged “[t]he need to protect the sanctity of jury deliberations,” id., at 476, 21 P. 3d, at 1231, and included a lengthy discussion of three Federal Court of Appeals cases that it said had “considered these issues in depth,” id., at 480–484, 21 P. 3d, at 1234–1237. Those three cases—United States v. Symington, 195 F.3d 1080 (CA9 1999), United States v. Thomas, 116 F.3d 606 (CA2 1997), and United States v. Brown, 823 F.2d 591 (CADC 1987)—concern the discharge of holdout jurors in federal court. Each case discusses the Sixth Amendment right to a jury trial and concludes that a trial court should not inquire further if it appears that there is “ ‘any reason- able possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case.’ ” Cleveland, supra, at 484, 21 P. 3d, at 1237 (quoting Sym- ington, supra, at 1087); see also Thomas, supra, at 621– 622; Brown, supra, at 596. Though the Cleveland court found much to praise in these decisions, it expressly de- clined to follow them on this point. 25 Cal. 4th, at 483– 484, 21 P. 3d, at 1236–1237. Cleveland did not expressly purport to decide a federal constitutional question, but its discussion of Symington, Thomas, and Brown shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See 25 Cal. 4th, at 487, 21 P. 3d, at 1239 (Werdegar, J., concurring) (emphasizing importance of careful appellate review in juror discharge cases in light of the “constitutional dimension to the prob- lem”). Indeed, it is difficult to imagine the California Supreme Court announcing an interpretation of Cal. Penal Code Ann. §1089 that it believed to be less protective than the Sixth Amendment, as any such interpretation would provide no guidance to state trial judges bound to follow Cite as: 568 U. S. ____ (2013) 15 Opinion of the Court both state and federal law. The Ninth Circuit’s conclusion to the contrary rested on the fact that Cleveland refused to follow Symington, Brown, and Thomas. 646 F. 3d, at 640. But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law. The Ninth Circuit’s apparent assumption that the California Supreme Court could not refuse to follow federal court of appeals prece- dent without disregarding the Federal Constitution would undo §2254(d)’s “contrary to” provision, which requires deference unless a state court fails to follow Supreme Court precedent. 28 U.S. C. §2254(d)(1). Regardless of whether a California court would consider Williams’ §1089 and Sixth Amendment claims to be per- fectly coextensive, the fact that these claims are so similar makes it unlikely that the California Court of Appeal decided one while overlooking the other. Indeed, it is dif- ficult to imagine any panel of appellate judges reading Cleveland and passing on the propriety of dismissing a holdout juror under §1089 without realizing that such situations also bear on the federal constitutional right to a fair trial. The California Court of Appeal’s quotation of our definition of “impartiality” from Wood, 299 U. S., at 145–146, points to the same conclusion, confirming that the state court was well aware that the questioning and dismissal of Juror 6 implicated both state and federal law. Williams’ litigation strategy supports the same result. Throughout her state proceedings, Williams treated her state and federal claims as interchangeable, and it is hardly surprising that the state courts did so as well. See Brief for Appellant in No. B137365 (Cal. App.), App. 29 (citing §1089 precedent and concluding that Williams “was accordingly denied her Sixth Amendment right to a unan- imous jury”). After the California Court of Appeal ren- 16 JOHNSON v. WILLIAMS Opinion of the Court dered its decision, Williams neither petitioned that court for rehearing nor argued in the subsequent state and federal proceedings that the state court had failed to adjudicate her Sixth Amendment claim on the merits. The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit. See 646 F. 3d, at 638, n. 7. Williams presumably knows her case better than anyone else, and the fact that she does not appear to have thought that there was an oversight makes such a mistake most improbable. We think it exceedingly unlikely that the California Court of Appeal overlooked Williams’ federal claim, and the Ninth Circuit’s judgment to the contrary is reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 568 U. S. ____ (2013) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 11–465 _________________ DEBORAH K. JOHNSON, ACTING WARDEN, PE- TITIONER v. TARA SHENEVA WILLIAMS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [February 20, 2013] JUSTICE SCALIA, concurring in the judgment.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) restricts the circumstances under which a federal habeas court may grant relief to a state prisoner whose claim has already been “adjudicated on the merits in State court.” 2 U.S. C. Specifically, if a claim has been “adjudicated on the merits in State court,” a federal habeas court may not grant relief unless “the adjudication of the claim— “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab- lished Federal law, as determined by the Supreme Court of the United States; or “(2) resulted in a decision that was based on an un- reasonable determination of the facts in light of the evidence presented in the State court proceeding.” Because the requirements of are difficult to meet, it is important whether a federal claim was “adjudi- cated on the merits in State court,” and this case requires us to ascertain the meaning of the adjudication-on-the 2 JOHNSON v. WILLIAMS Opinion of the Court merits requirement. This issue arises when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not ex- pressly address the federal claim in question. If this defendant then raises the same claim in a federal habeas proceeding, should the federal court regard the claim as having been adjudicated on the merits by the state court and apply deference under ? Or may the federal court assume that the state court simply overlooked the federal claim and proceed to adjudicate the claim de novo, the course taken by the Court of Appeals in the case at hand? We believe that the answer to this question follows logically from our decision in Harr v. Richter, 562 U.S. In that case, we held that, when a state court issues an order that summarily rejects without discussion all the claims raised by a defendant, including a federal claim that the defendant subsequently presses in a federal habeas proceeding, the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits. We see no reason why this same rule should not apply when the state court addresses some of the claims raised by a defendant but not a claim that is later raised in a federal habeas proceeding. Applying this rule in the present case, we hold that the federal claim at issue here (a Sixth Amendment jury trial claim) must be presumed to have been adjudicated on the merits by the California courts, that this presumption was not adequately rebutted, that the restrictive standard of review set out in (2) consequently applies, and that under that standard respondent is not entitled to habeas relief. We therefore reverse the judgment of the Court of Appeals. Cite as: 56 U. S. (2013) 3 Opinion of the Court I A In October 19, respondent Tara Williams took two of her friends for a drive in southern California with the objective of committing a robbery. They stopped at a liquor store in Long Beach, and while Williams waited in the getaway car, her friends stole money from the cash register and fatally shot the store’s owner. Williams then drove one of her friends away, and the other fled on foot. Williams avoided capture for five years but was ultimately apprehended and charged with first-degree murder. At trial, Williams admitted that she had served as the getaway driver but claimed that she did not know that her friends were going to rob the liquor store at the particular time in question. Instead, she contended that the three friends had agreed only that they would “case” the store and would possibly return later that evening to rob it. The State countered that, regardless of whether Williams knew precisely when and where the robbery was to take place, she had agreed to help commit a robbery and that this was sufficient to provide the predicate for felony murder under California law. After deliberating for about three hours, the jury fore- sent the judge two notes. The first note asked the following question: “ ‘Is it legally permissible for a juror to interpret the jury instructions to mean that the conspiracy should involve a plan to commit a specific robbery ra- ther than a general plan to commit robberies in the future?’ ” Tr. 12. The second note stated: “I wish to inform you that we have one juror who has expressed an intention to disregard the law and has expressed concern relative to the severity of the charge (first degree murder).” 4 JOHNSON v. WILLIAMS Opinion of the Court The judge told the jury that the answer to the question in the first note was “no.” Then, over Williams’ objection, the judge briefly questioned the fore outside the presence of the rest of the jury about the second note. The fore said that he thought the judge’s answer to the first note might resolve the problem, and the judge instructed the jury to resume its deliberations. The next morning, once again over Williams’ objection, the judge decided to inquire further about the fore’s second note. On questioning by the judge and lawyers for both parties, the fore testified that Juror 6 had brought up past instances of jury nullification. The fore- also expressed doubt about whether Juror 6 was willing to apply the felony-murder rule. The trial judge then ordered questioning of Juror 6, who first denied and then admitted bringing up instances of nullification. Juror 6 also testified that this was a serious case and that he would vote to convict only if he was “very convinced beyond a reasonable doubt.” He later clari- fied that in his view “convinced beyond a reasonable doubt” and “very convinced beyond a reasonable doubt” meant the same thing. After taking testi- mony from the remaining jurors, who corroborated the fore’s testimony to varying degrees, the trial judge dis- missed Juror 6 for bias. With an alternate juror in place, the jury convicted Williams of first-degree murder. B On appeal to the California Court of Appeal, Williams argued, among other things, that the discharge of Juror 6 violated both the Sixth Amendment and the California Penal Code, which allows a California trial judge to dis- miss a juror who “upon good cause shown to the court is found to be unable to perform his or her duty.” Cal. Penal Code Ann. Although Williams’ brief challenged the questioning and dismissal of Juror 6 Cite as: 56 U. S. (2013) 5 Opinion of the Court on both state and federal grounds, it did not clearly distin- guish between these two lines of authority. In a written opinion affirming Williams’ conviction, the California Court of Appeal devoted several pages to discussing the propriety of the trial judge’s decision to dis- miss the juror. People v. Taylor, No. B137365 The court held that Juror 6 had been properly dismissed for bias and quoted this Court’s definition of “impartiality” in United 145–146 (16). But despite its extended discussion of Juror 6’s dismissal and the questioning that preceded it, the California Court of Appeal never expressly acknowl- edged that it was deciding a Sixth Amendment issue. Williams petitioned the California Supreme Court for review, and while her petition was pending, that court decided which held that a trial court had abused its discre- tion by dismissing for failure to deliberate a juror who appeared to disagree with the rest of the jury about the evidence. The California Supreme Court granted Wil- liams’ petition for review and reded her case for fur- ther consideration in light of this intervening authority. People v. Taylor, No. S09737 On red, the California Court of Appeal issued a revised opinion holding that the trial court had not abused its discretion by questioning the jury and dismissing Juror 6. Williams argued that Juror 6—like the holdout juror in —was dismissed because he was uncooperative with other jurors who did not share his view of the evi- dence. But the California Court of Appeal disagreed, explaining that Williams’ argument “not only misstate[d] the evidence,” but also “ignore[d] the trial court’s explana- tion that it was discharging Juror No. 6 because he had shown himself to be biased, not because he was failing to deliberate or engaging in juror nullification.” People v. Taylor, No. B137365 App. to Pet. for Cert. 6 JOHNSON v. WILLIAMS Opinion of the Court 105a. As in its earlier opinion, the California Court of Appeal quoted our definition of juror bias in Wood, but the court did not expressly acknowledge that Williams had invoked a federal basis for her argument. Despite that omission, however, Williams did not seek rehearing or other- wise suggest that the court had overlooked her federal claim. Instead, she filed another petition for review in the California Supreme Court, but this time that court denied relief in a one-sentence order. People v. Taylor, No. S104661 App. to Pet. for Cert. 5a. Williams sought but failed to obtain relief through state habeas proceedings, and she then filed a federal habeas petition under 2 U.S. C. The District Court ap- plied AEDPA’s deferential standard of review for claims previously adjudicated on the merits and denied relief. Williams v. Mitchell, No. 03–2691 (CD Cal., May 30, 2007), App. to Pet. for Cert. 57a. In so holding, the Dis- trict Court adopted a Magistrate Judge’s finding that the evidence “amply support[ed] the trial judge’s determina- tion that good cause existed for the discharge of Juror 6.” Williams v. Mitchell, No. 03–2691 (CD Cal., Mar. 19, 2007), at 70a. The Ninth Circuit reversed. Unlike the District Court, the Ninth Circuit declined to apply the deferential stand- ard of review contained in The Ninth Circuit took this approach because it thought it “obvious” that the State Court of Appeal had “overlooked or disregarded” Williams’ Sixth Amendment claim.1 The Ninth Circuit reasoned that the State Supreme Court decision on —————— 1 Consistent with our decision in 06 the Ninth Circuit “look[ed] through” the California Supreme Court’s summary denial of Williams’ petition for review and examined the California Court of Appeal’s opinion, the last reasoned state-court decision to address Juror 6’s dismissal. Williams v. Cavazos, 646 F.3d 626, 635 Cite as: 56 U. S. (2013) 7 Opinion of the Court which the State Court of Appeal had relied, “was not a constitutional decision,” and the Ninth Circuit attributed no significance to the state court’s cita- tion of our decision in Wood. Reviewing Williams’ Sixth Amendment claim de novo, the Ninth Circuit applied its own precedent and held that the questioning and dismis- sal of Juror 6 violated the Sixth Amendment. 646 F. 3d, at 646–6. We granted the warden’s petition for a writ of certiorari, 565 U. S. in order to decide whether the Ninth Circuit erred by refusing to afford AEDPA deference to the California Court of Appeal’s decision. II A As noted above, AEDPA sharply limits the circum- stances in which a federal court may issue a writ of habeas corpus to a state prisoner whose claim was “adjudicated on the merits in State court proceedings.” 2 U.S. C. In Richter, 562 U. S., at (slip op., at 10), we held that “does not require a state court to give reasons before its decision can be deemed to have been ‘adjudicated on the merits.’ ” Rather, we explained, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” at (slip op., at 9). Our reasoning in Richter points clearly to the answer to the question presented in the case at hand. Although Richter itself concerned a state-court order that did not address any of the defendant’s claims, we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defend- ant’s claims. There would be a reason for drawing a dis- tinction between these two situations if opinions issued by state appellate courts always separately addressed every JOHNSON v. WILLIAMS Opinion of the Court single claim that is mentioned in a defendant’s papers. If there were such a uniform practice, then federal habeas courts could assume that any unaddressed federal claim was simply overlooked. No such assumption is warranted, however, because it is not the uniform practice of busy state courts to discuss separately every single claim to which a defendant makes even a passing reference. On the contrary, there are several situations in which state courts frequently take a different course. First, there are circumstances in which a line of state precedent is viewed as fully incorporating a related federal constitutional right. In California, for example, the state constitutional right to be present at trial “ ‘is generally coextensive with’ ” the protections of the Federal Constitu- tion. 606 (2009); see also, e.g., (standard for racial discrimination in juror selection “ ‘is the same under the Federal Constitution and the [Massa- chusetts] Declaration of Rights’ ”); State v. Krause, 17 N.W.2d 136, 144 (“ ‘The due process protec- tion provided under the Minnesota Constitution is identi- cal to the due proces[s] guaranteed under the Constitution of the United States’ ”); 122, (observing that a Kansas statute is “analytically and functionally identical to the requirements under the Confrontation Clause and the Due Process Clause of the federal Constitution”). In this situa- tion, a state appellate court may regard its discussion of the state precedent as sufficient to cover a claim based on the related federal right. Second, a state court may not regard a fleeting reference to a provision of the Federal Constitution or federal prece- dent as sufficient to raise a separate federal claim. Federal courts of appeals refuse to take cognizance of arguments Cite as: 56 U. S. (2013) 9 Opinion of the Court that are made in passing without proper development. See, e.g., United ; United n. 2 (CA9 2007); United 40 ; (CA3 1997); (CADC 193). State appellate courts are entitled to follow the same practice. Third, there are instances in which a state court may simply regard a claim as too insubstantial to merit discus- sion. Indeed, the California Court of Appeal has expressly stated that it has no obligation to address claims that lack arguable merit. See 0, That court has ex- plained: “In an era in which there is concern that the quality of justice is being diminished by appellate backlog with its attendant delay, which in turn contributes to a lack of finality of judgment, it behooves us as an appellate court to ‘get to the heart’ of cases presented and dispose of them expeditiously.” See also (“The author of an opinion must follow his own judgment as to the degree of elaboration to be accorded to the treatment of any prop- osition and as to the questions which are worthy of notice at all” (emphasis added)). While it is preferable for an appellate court in a criminal case to list all of the argu- ments that the court recognizes as having been properly presented, see R. Aldisert, Opinion Writing 95–96 federal courts have no authority to impose da- tory opinion-writing standards on state courts, see Cole- (“[W]e have no power to tell state courts how they must write their opinions”). The caseloads shouldered by y state appel- late courts are very heavy,2 and the opinions issued by —————— 2 See, e.g., Judicial Council of California, Court Statistics Re- 10 JOHNSON v. WILLIAMS Opinion of the Court these courts must be read with that factor in mind. In sum, because it is by no means uncommon for a state court to fail to address separately a federal claim that the court has not simply overlooked, we see no sound reason for failing to apply the Richter presumption in cases like the one now before us. When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption can in some limited circumstances be rebutted. B Not satisfied with a strong but rebuttable presumption, petitioner urges us to make the presumption irrebuttable. Specifically, petitioner contends that a state court must be regarded as having adjudicated a federal claim on the merits if the state court addressed “the substance of [an] asserted trial error.” Brief for Petitioner Suppose, for example, that a defendant claimed in state court that something that occurred at trial violated both a provision of the Federal Constitution and a related provision of state law, and suppose further that the state court, in denying relief, made no reference to federal law. According to —————— port, Statewide Caseload Trends, 2000– Through 2009–2010, p. 15 (observing that in fiscal year 2009–2010, the 105-judge California Court of Appeal produced opinions in 10,0 cases), online at http:// www.courts.ca.gov/documents/CourtStatisticsReport.pdf (all Inter- net materials as visited Jan. 24, 2013, and available in Clerk of Court’s case file); In re Certification of Need for Additional Judges, WL 6612 (in fiscal year –, Florida’s Second District Court of Appeal received appeals in 6,34 cases); Supreme Court of Ohio, Ohio Courts Statistical Report, p. 14 (observing that in the State’s 69 intermediate appellate judges rendered decisions in 7,1 cases), online at http:// www.supremecourt.ohio.gov / publications / annrep / IOCS / OCS.pdf; Court Statistics Project, Examining the Work of State Courts: An Analysis of 2010 State Court Caseloads 40 (noting that in 2010 state appellate courts received appeals in over 0,000 cases). Cite as: 56 U. S. (2013) 11 Opinion of the Court petitioner’s argument, a federal habeas court would be required to proceed on the assumption that the federal claim was adjudicated on the merits. This argument goes too far. To be sure, if the state-law rule subsumes the federal standard—that is, if it is at least as protective as the federal standard—then the federal claim may be regarded as having been adjudicated on the merits. See (per curiam). But what if, for example, in at least some circumstances the state standard is less protective? Or what if the state standard is quite different from the federal standard, and the defendant’s papers made no effort to develop the basis for the federal claim? What if a provision of the Federal Constitution or a federal prece- dent was simply mentioned in passing in a footnote or was buried in a string cite? In such circumstances, the pre- sumption that the federal claim was adjudicated on the merits may be rebutted—either by the habeas petitioner (for the purpose of showing that the claim should be con- sidered by the federal court de novo) or by the State (for the purpose of showing that the federal claim should be regarded as procedurally defaulted). See at 739 (rebuttable presumption of no independent and adequate state ground applies so long as “it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law”). Thus, while the Richter presumption is a strong one that may be rebutted only in unusual circumstances, it is not irrebuttable.3 “Per se rules should not be applied in situations where the generalization is incorrect as an empirical matter,” Cole- and an irrebuttable presumption —————— 3 For example, when a defendant does so little to raise his claim that he fails to “ ‘fairly present’ ” it in “each appropriate state court,” Bald- the Richter presumption is fully rebutted. 12 JOHNSON v. WILLIAMS Opinion of the Court that state courts never overlook federal claims would occasionally miss the mark. The language of 2 U.S. C. makes it clear that this provision applies only when a federal claim was “ad- judicated on the merits in State court.” A judgment is normally said to have been rendered “on the merits” only if it was “delivered after the court heard and evaluated the evidence and the parties’ substantive arguments.” Black’s Law Dictionary 1199 (9th ed. 2009) (emphasis added). And as used in this context, the word “merits” is defined as “[t]he intrinsic rights and wrongs of a case as determined by matters of substance, in distinction from matters of form.” Webster’s New International Dictionary 1540 (2d ed. 1954) (emphasis added); see also, e.g., 9 Ox- ford English Dictionary 634 (2d ed. 199) (“the intrinsic ‘rights and wrongs’ of the matter, in contradistinction to extraneous points such as the competence of the tribunal or the like” (emphasis added)); Random House Dictionary of the English Language 97 (1967) (“the intrinsic right and wrong of a matter, as a law case, unobscured by pro- cedural details, technicalities, personal feelings, etc.” (emphasis added)). If a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter. JUSTICE SCALIA is surely correct that such claims have been adjudicated and present federal questions we may review, post, at 3–4, but it does not follow that they have been adjudicated “on the merits.” By having us neverthe- less apply AEDPA’s deferential standard of review in such cases, petitioner’s argument would improperly excise ’s on-the-merits requirement. Nor does petitioner’s preferred approach follow inexora- bly from AEDPA’s deferential architecture. Even while leaving “primary responsibility” for adjudicating federal claims to the States, (per curiam), AEDPA permits de novo review in Cite as: 56 U. S. (2013) 13 Opinion of the Court those rare cases when a state court decides a federal claim in a way that is “contrary to” clearly established Supreme Court precedent, see Panetti v. Quarter, 551 U.S. 0, (2007). When the evidence leads very clearly to the conclusion that a federal claim was inadvertently over- looked in state court, entitles the prisoner to an unencumbered opportunity to make his case before a fed- eral judge. We are not persuaded that applying a rebuttable pre- sumption in this context will be unduly burdensome for federal courts. Before Richter, every Court of Appeals to consider the issue allowed a prisoner to argue that a state court had overlooked his federal claim.4 That approach did not prompt an unageable flood of litigation, and we see no reason to fear that it will do so now. III Applying the presumption of merits adjudication to the facts of this case, we hold that the Ninth Circuit erred by finding that the California Court of Appeal overlooked Williams’ Sixth Amendment claim. Several facts make this conclusion inescapable. Most important is the state court’s discussion of Cleve- land, a California Supreme Court decision on which the Court of Appeal solicited briefing. held that a California trial court, “if put on notice that a juror is not participating in delib- erations,” may “conduct ‘whatever inquiry is reasonably necessary to determine’ whether such grounds exist and —————— 4 See, e.g., 0 F.3d 1, 111–112 ; 441 F.3d 23, ; Espy v. Massac, 443 F.3d 1362, 1364–1365, and n. 2 ; v. Luebbers, 371 F.3d 45, 460–461 (en banc); Chadwick v. Janecka, 312 F.3d 597, 606 ; 4 F.3d 401, ; 306 F.3d 92, ; Fortini v. Murphy, 14 JOHNSON v. WILLIAMS Opinion of the Court discharge the juror if it appears as a ‘demonstrable reality’ that the juror is unable or unwilling to deliberate.” at 44, The court acknowledged “[t]he need to protect the sanctity of jury deliberations,” at 6, 21 P. 3d, at 1231, and included a lengthy discussion of three Federal Court of Appeals cases that it said had “considered these issues in depth,” at 40–44, –1237. Those three cases—United States v. Sym, 195 F.3d 100 (CA9 1999), United (CA2 1997), and United 23 F.2d 591 (CADC 197)—concern the discharge of holdout jurors in federal court. Each case discusses the Sixth Amendment right to a jury trial and concludes that a trial court should not inquire further if it appears that there is “ ‘any reason- able possibility that the impetus for a juror’s dismissal stems from the juror’s views on the merits of the case.’ ” at 44, (quoting Sym- at 107); see also at 621– 622; Though the court found much to praise in these decisions, it expressly de- clined to follow them on this 25 Cal. 4th, at 43– 44, –1237. did not expressly purport to decide a federal constitutional question, but its discussion of Sym, and shows that the California Supreme Court understood itself to be deciding a question with federal constitutional dimensions. See 25 Cal. 4th, at (emphasizing importance of careful appellate review in juror discharge cases in light of the “constitutional dimension to the prob- lem”). Indeed, it is difficult to imagine the California Supreme Court announcing an interpretation of Cal. Penal Code Ann. that it believed to be less protective than the Sixth Amendment, as any such interpretation would provide no guidance to state trial judges bound to follow Cite as: 56 U. S. (2013) 15 Opinion of the Court both state and federal law. The Ninth Circuit’s conclusion to the contrary rested on the fact that refused to follow Sym, and But the views of the federal courts of appeals do not bind the California Supreme Court when it decides a federal constitutional question, and disagreeing with the lower federal courts is not the same as ignoring federal law. The Ninth Circuit’s apparent assumption that the California Supreme Court could not refuse to follow federal court of appeals prece- dent without disregarding the Federal Constitution would undo ’s “contrary to” provision, which requires deference unless a state court fails to follow Supreme Court precedent. 2 U.S. C. (1). Regardless of whether a California court would consider Williams’ and Sixth Amendment claims to be per- fectly coextensive, the fact that these claims are so similar makes it unlikely that the California Court of Appeal decided one while overlooking the other. Indeed, it is dif- ficult to imagine any panel of appellate judges reading and passing on the propriety of dismissing a holdout juror under without realizing that such situations also bear on the federal constitutional right to a fair trial. The California Court of Appeal’s quotation of our definition of “impartiality” from Wood, 9 U. S., at 145–146, points to the same conclusion, confirming that the state court was well aware that the questioning and dismissal of Juror 6 implicated both state and federal law. Williams’ litigation strategy supports the same result. Throughout her state proceedings, Williams treated her state and federal claims as interchangeable, and it is hardly surprising that the state courts did so as well. See Brief for Appellant in No. B137365 (Cal. App.), App. (citing precedent and concluding that Williams “was accordingly denied her Sixth Amendment right to a unan- imous jury”). After the California Court of Appeal ren- 16 JOHNSON v. WILLIAMS Opinion of the Court dered its decision, Williams neither petitioned that court for rehearing nor argued in the subsequent state and federal proceedings that the state court had failed to adjudicate her Sixth Amendment claim on the merits. The possibility that the California Court of Appeal had simply overlooked Williams’ Sixth Amendment claim apparently did not occur to anyone until that issue was raised by two judges during the oral argument in the Ninth Circuit. See 646 F. 3d, at 63, n. 7. Williams presumably knows her case better than anyone else, and the fact that she does not appear to have thought that there was an oversight makes such a mistake most improbable. We think it exceedingly unlikely that the California Court of Appeal overlooked Williams’ federal claim, and the Ninth Circuit’s judgment to the contrary is reversed. The case is reded for further proceedings consistent with this opinion. It is so ordered. Cite as: 56 U. S. (2013) 1 SCALIA, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 11–465 DEBORAH K. JOHNSON, ACTING WARDEN, PE- TITIONER v. TARA SHENEVA WILLIAMS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [February 20, 2013] JUSTICE SCALIA, concurring in the judgment.

Justice Scalia

concurring

Johnson v. Williams

2013-02-20

https://www.courtlistener.com/opinion/820895/johnson-v-williams/

https://www.courtlistener.com/api/rest/v3/clusters/820895/

2012-017

I agree with the Court’s rejection of the proposition that a judgment denying a federal claim is irrebuttably pre- sumed to have been “adjudicated on the merits” within the meaning of 28 U.S. C. §2254(d). I disagree, however, that one of the grounds on which the rebuttal may rely is that the federal claim was “inadvertently overlooked.” Ante, at 13. In my view the rebuttal must consist of a show- ing, based on the explicit text of the court’s order, or upon standard practice and understanding in the jurisdiction with regard to the meaning of an ambiguous text, that the judgment did not purport to decide the federal question. “Decided after due consideration” is not, and has never been, the meaning of the legal term of art “decided on the merits,” and giving it that meaning burdens our lower courts with an unusual subjective inquiry that demeans state courts and will be a fertile source of litigation and delay. In the Court’s view, a habeas petitioner receives de novo review if he can prove that the state court, although ad- dressing his state claim, overlooked his federal claim. A nonexhaustive list of factors, we are told, may bear on the analysis: state-court opinion-writing practices, ante, at 8, 9; state-law precedents and whether and how they incor- porate federal law, ante, at 8; substantiality of the federal 2 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment claim, ante, at 9; citations to federal cases in state-court opinions (or citations to state cases that contain citations to federal cases), ante, at 13–14; the degree of similarity between the federal and state claim, ante, at 15; a peti- tioner’s “litigation strategy,” ante, at 15–16; and other clues that may possibly illuminate the inner thought processes of a state-court judge. Only after conducting its own detective work does the Court conclude that the fed- eral claim was not overlooked in this case. This complex exercise is unnecessary. A judgment that denies relief necessarily denies—and thus adjudicates—all the claims a petitioner has raised. See 1 H. Black, Law of Judgments §1, p. 2 (2d ed. 1902) (“[T]he judgment neces- sarily affirms, or else denies, that [an alleged] duty or . . . liability rests upon the person against whom the aid of the law is invoked”); id., §24, at 37. The judgment itself gives conclusive expression that the claims have been con- sidered and rejected—whatever the individual judge might have been pondering (or not pondering). At common law the formal language traditionally preceding the an- nouncement of a court’s judgment was “consideratum est per curiam” (“It is considered by the court”). See Black’s Law Dictionary 349–350 (9th ed. 2009); 1 Bouvier’s Law Dictionary 619 (8th ed. 1914). The Court maintains that “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evalu- ated based on the intrinsic right and wrong of the matter,” ante, at 12. Perhaps not, but it nonetheless may have been rejected “on the merits.” That phrase does not sug- gest a line between a considered rejection of a claim and an unconsidered, inadequately considered, or inadvertent rejection. Rather, it refers to a “determination that there exist or do not exist grounds entitling a petitioner” to relief under his claim, as contrasted with a “denial for such rea- sons as failure to exhaust, procedural default, or statute- of-limitations bar.” Gonzalez v. Crosby, 545 U.S. 524, Cite as: 568 U. S. ____ (2013) 3 SCALIA, J., concurring in judgment 532, n. 4 (2005). An “adjudication on the merits” is “best understood by stating what it is not: it is not a resolution of a claim on procedural grounds.” Muth v. Frank, 412 F.3d 808, 815 (CA7 2005). And, as we have affirmed and reaffirmed recently, where a claim has been denied, but it is unclear from the record whether the denial was on the merits or on another basis, we presume the former. Har- rington v. Richter, 562 U.S. ___, ___ (2011) (slip op., at 9– 10) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Coleman v. Thompson, 501 U.S. 722, 732–733 (1991). We apply a presumption of merits determination in that sense not just with respect to §2254(d) but for other pur- poses as well. We have long applied it, for example, in determining whether a claim is barred by res judicata: “Ordinarily, such a question is answered by a mere inspection of the decree—the presumption being that a dismissal in equity, without qualifying words, is a final decision on the merits. That presumption of fi- nality . . . disappears whenever the record shows that the court did not pass upon the merits but dismissed the bill because of a want of jurisdiction, for want of parties, because the suit was brought prematurely, because the plaintiff had a right to file a subsequent bill on the same subject-matter, or on any other ground not going to the merits.” Swift v. McPherson, 232 U.S. 51, 55–56 (1914) (emphasis added); see also Hubbell v. United States, 171 U.S. 203, 207 (1898); Durant v. Essex Co., 7 Wall. 107, 109 (1868). We also apply a presumption of merits determination in the sense I have described for purposes of 28 U.S. C. §1257, which imposes a federal-question requirement as a condition of this Court’s appellate jurisdiction. Michigan v. Long, 463 U.S. 1032, 1040–1041 (1983). Indeed, the application of the presumption in direct-review cases was the genesis of the presumption in federal habeas cases. 4 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment The condition for federal habeas—that the federal ques- tion must have been addressed on the merits by the state courts—did not originate with the enactment of the Anti- terrorism and Effective Death Penalty Act in 1996, but was established as early as 1977 in Wainwright v. Sykes, 433 U.S. 72, 81, 86–87. We described the assessment of whether that requirement was met as presenting “the same problem of ambiguity that this Court resolved in Michigan v. Long.” Harris, 489 U. S., at 262. And indeed, we described the habeas requirement as an application of the “adequate and independent state ground doctrine,” which inquires whether a “finding of procedural default will bar federal habeas review.” Ibid. It is of course un- thinkable that a state-court resolution of a federal ques- tion will escape our review under §1257 if it is inadvertent rather than intentional. Given this background, there is no reason to believe that AEDPA established a new and peculiar regime in which the federal habeas court must make one assessment of whether the federal question has been decided “on the merits” for purposes of determining its authority to review the question (a Long assessment which counts, as §1257 cases count, inadvertent resolution of a federal question); and then must proceed to a different assessment of “on the merits” (one that does not count inadvertent resolution) for purposes of determining whether deference to the state-court judgment is required. But, it will be argued, how can a court “defer” to a state- court determination that was in fact never made? Must not one first be sure it exists before one can accord it respect? The answer is no; according respect only to de- terminations that have for-sure been made is demonstra- bly not the scheme that AEDPA envisions. Federal ha- beas courts defer to state determinations that may in fact never have been made whenever they find a summary, unexplained rejection of a federal claim to be sustainable Cite as: 568 U. S. ____ (2013) 5 SCALIA, J., concurring in judgment (e.g., not contrary to clearly established federal law as determined by this Court). The validating basis that the federal habeas court posits need not have been the one that the state court actually relied upon; the state court may well have applied a theory that was flat-out wrong, and may not have made the subsidiary determinations (including factual assessments) necessary to support the correct theory. That does not matter. For what is accorded deference is not the state court’s reasoning but the state court’s judgment, which is presumed to be supported by whatever valid support was available. See Harrington, supra, at ___ (slip op., at 12) (“Under §2254(d) a habeas court must determine what arguments or theories sup- ported or, as here, could have supported, the state court’s decision”). Indeed, the deference with regard to the basis of decision is much more “blind” than the deference I assert is necessary in the present case. I demand a state- court statement (contained in the unqualified terms of its judgment) that it has rejected the federal claim; I sim- ply refuse to question the veracity of that statement. By contrast, no statement is ever even required that the state court relied upon the theory of federal law that the habeas court finds validating. I doubt that the Court is prepared to abide by its novel interpretation of “on the merits” for purposes of §2254(d). Imagine that the state court formulated its judgment as follows: “All claims raised by the defendant have been considered and denied.” I cannot believe that the Court would require federal courts to test the veracity of that statement. Yet, as we have described, that is precisely what an (unadorned) judgment denying relief already conveys. Although the Court acknowledges that “ ‘[w]e have no power to tell state courts how they must write their opinions,’ ” ante, at 9, its analysis would turn solely on how the order of judgment is styled. Resolution of this case is direct: Respondent’s claim was 6 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment “adjudicated on the merits,” because the state court ren- dered a judgment rejecting all her claims, and the judg- ment gave no indication (such as a statement that it was “without prejudice”) that it was based on a procedural or other nonmerits ground. The Court’s novel resolution of the “on the merits” ques- tion produces a clear enough answer in this case. The weight of the evidence demonstrated that it was “exceed- ingly unlikely” that the state court overlooked the federal claim. Ante, at 16. But such ready resolution will not be commonplace. Consider another case, where the federal and state claims are not related, where there is no rele- vant state precedent referring to federal law, where state law might be interpreted as less defendant-friendly than the federal standard, or where a confluence of such factors exists. The answer to whether the federal claim has been “evaluated based on the intrinsic right and wrong of the matter” is anybody’s guess. One thing, however, is cer- tain: The Court’s case-by-case approach will guarantee protracted litigation over whether a state-court judge was aware of a claim on the day he rejected it. The Court tells us not to worry about a flood of liti- gation, because the Courts of Appeals have previously al- lowed arguments from petitioners that the state courts overlooked their federal claims. Ante, at 13, and n. 4 (citing cases). But many of those cases applied a much simpler (and even less justifiable) test than the one adopted today: if the federal claim was not addressed in the opinion, then it was not adjudicated on the merits. See, e.g., Lyell v. Renico, 470 F.3d 1177, 1181–1182 (CA6 2006); Fortini v. Murphy, 257 F.3d 39, 47 (CA1 2001). And even those courts that attempted to “divin[e] the thought processes of” the judge limited their inquiry to “what a state court has said.” Brown v. Luebbers, 371 F. 3d 458, 461 (CA8 2004) (emphasis added); see also, e.g., Chadwick v. Janecka, 312 F.3d 597, 606 (CA3 2002). By Cite as: 568 U. S. ____ (2013) 7 SCALIA, J., concurring in judgment contrast, the Court today asks whether a judge thought about the merits of an unaddressed claim, and leaves on the table any evidence relevant to that inquiry. This newly-sponsored enterprise of probing the judicial mind is inappropriately intrusive upon state-court pro- cesses. Are federal habeas courts now to consider evidence relevant to the internal deliberations of the state judici- ary? Can a petitioner introduce testimony showing that state-court judges—because of time constraints, heavy caseloads, or other reasons—fail to read the briefs but leave that to their assistants, whose recommendations they rarely reject? Or testimony showing that, typically, only one judge on the state-court appellate panel reads the briefs and considers all the claims, and the others simply join the drafted order? Has there been an “adjudication on the merits” then? Future litigation will supply the answers. For these reasons, I do not join the opinion of the Court and concur only in the judgment

I agree with the Court’s rejection of the proposition that a judgment denying a federal claim is irrebuttably pre- sumed to have been “adjudicated on the merits” within the meaning of 28 U.S. C. I disagree, however, that one of the grounds on which the rebuttal may rely is that the federal claim was “inadvertently overlooked.” Ante, at 13. In my view the rebuttal must consist of a show- ing, based on the explicit text of the court’s order, or upon standard practice and understanding in the jurisdiction with regard to the meaning of an ambiguous text, that the judgment did not purport to decide the federal question. “Decided after due consideration” is not, and has never been, the meaning of the legal term of art “decided on the merits,” and giving it that meaning burdens our lower courts with an unusual subjective inquiry that demeans state courts and will be a fertile source of litigation and delay. In the Court’s view, a habeas petitioner receives de novo review if he can prove that the state court, although ad- dressing his state claim, overlooked his federal claim. A nonexhaustive list of factors, we are told, may bear on the analysis: state-court opinion-writing practices, ante, at 8, 9; state-law precedents and whether and how they incor- porate federal law, ante, at 8; substantiality of the federal 2 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment claim, ante, at 9; citations to federal cases in state-court opinions (or citations to state cases that contain citations to federal cases), ante, at 13–14; the degree of similarity between the federal and state claim, ante, at 15; a peti- tioner’s “litigation strategy,” ante, at 15–16; and other clues that may possibly illuminate the inner thought processes of a state-court judge. Only after conducting its own detective work does the Court conclude that the fed- eral claim was not overlooked in this case. This complex exercise is unnecessary. A judgment that denies relief necessarily denies—and thus adjudicates—all the claims a petitioner has raised. See 1 H. Black, Law of Judgments p. 2 (2d ed. 1902) (“[T]he judgment neces- sarily affirms, or else denies, that [an alleged] duty or liability rests upon the person against whom the aid of the law is invoked”); at 37. The judgment itself gives conclusive expression that the claims have been con- sidered and rejected—whatever the individual judge might have been pondering (or not pondering). At common law the formal language traditionally preceding the an- nouncement of a court’s judgment was “consideratum est per curiam” (“It is considered by the court”). See Black’s Law Dictionary 349–350 (9th ed. 2009); 1 Bouvier’s Law Dictionary 619 The Court maintains that “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evalu- ated based on the intrinsic right and wrong of the matter,” ante, at 12. Perhaps not, but it nonetheless may have been rejected “on the merits.” That phrase does not sug- gest a line between a considered rejection of a claim and an unconsidered, inadequately considered, or inadvertent rejection. Rather, it refers to a “determination that there exist or do not exist grounds entitling a petitioner” to relief under his claim, as contrasted with a “denial for such rea- sons as failure to exhaust, procedural default, or statute- of-limitations bar.” Cite as: 568 U. S. (2013) 3 SCALIA, J., concurring in judgment 532, n. 4 (2005). An “adjudication on the merits” is “best understood by stating what it is not: it is not a resolution of a claim on procedural grounds.” Muth v. Frank, 412 F.3d 808, 5 (CA7 2005). And, as we have affirmed and reaffirmed recently, where a claim has been denied, but it is unclear from the record whether the denial was on the merits or on another basis, we presume the former. Har- rington v. Richter, 562 U.S. (2011) (slip op., at 9– 10) ); see also We apply a presumption of merits determination in that sense not just with respect to but for other pur- poses as well. We have long applied it, for example, in determining whether a claim is barred by res judicata: “Ordinarily, such a question is answered by a mere inspection of the decree—the presumption being that a dismissal in equity, without qualifying words, is a final decision on the merits. That presumption of fi- nality disappears whenever the record shows that the court did not pass upon the merits but dismissed the bill because of a want of jurisdiction, for want of parties, because the suit was brought prematurely, because the plaintiff had a right to file a subsequent bill on the same subject-matter, or on any other ground not going to the merits.” ; see also ; We also apply a presumption of merits determination in the sense I have described for purposes of 28 U.S. C. which imposes a federal-question requirement as a condition of this Court’s appellate jurisdiction. Michigan v. Long, Indeed, the application of the presumption in direct-review cases was the genesis of the presumption in federal habeas cases. 4 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment The condition for federal habeas—that the federal ques- tion must have been addressed on the merits by the state courts—did not originate with the enactment of the Anti- terrorism and Effective Death Penalty Act in 1996, but was established as early as 1977 in 86–87. We described the assessment of whether that requirement was met as presenting “the same problem of ambiguity that this Court resolved in” And indeed, we described the habeas requirement as an application of the “adequate and independent state ground doctrine,” which inquires whether a “finding of procedural default will bar federal habeas review.” It is of course un- thinkable that a state-court resolution of a federal ques- tion will escape our review under if it is inadvertent rather than intentional. Given this background, there is no reason to believe that AEDPA established a new and peculiar regime in which the federal habeas court must make one assessment of whether the federal question has been decided “on the merits” for purposes of determining its authority to review the question (a Long assessment which counts, as cases count, inadvertent resolution of a federal question); and then must proceed to a different assessment of “on the merits” (one that does not count inadvertent resolution) for purposes of determining whether deference to the state-court judgment is required. But, it will be argued, how can a court “defer” to a state- court determination that was in fact never made? Must not one first be sure it exists before one can accord it respect? The answer is no; according respect only to de- terminations that have for-sure been made is demonstra- bly not the scheme that AEDPA envisions. Federal ha- beas courts defer to state determinations that may in fact never have been made whenever they find a summary, unexplained rejection of a federal claim to be sustainable Cite as: 568 U. S. (2013) 5 SCALIA, J., concurring in judgment (e.g., not contrary to clearly established federal law as determined by this Court). The validating basis that the federal habeas court posits need not have been the one that the state court actually relied upon; the state court may well have applied a theory that was flat-out wrong, and may not have made the subsidiary determinations (including factual assessments) necessary to support the correct theory. That does not matter. For what is accorded deference is not the state court’s reasoning but the state court’s judgment, which is presumed to be supported by whatever valid support was available. See Harrington, at (slip op., at 12) (“Under a habeas court must determine what arguments or theories sup- ported or, as here, could have supported, the state court’s decision”). Indeed, the deference with regard to the basis of decision is much more “blind” than the deference I assert is necessary in the present case. I demand a state- court statement (contained in the unqualified terms of its judgment) that it has rejected the federal claim; I sim- ply refuse to question the veracity of that statement. By contrast, no statement is ever even required that the state court relied upon the theory of federal law that the habeas court finds validating. I doubt that the Court is prepared to abide by its novel interpretation of “on the merits” for purposes of Imagine that the state court formulated its judgment as follows: “All claims raised by the defendant have been considered and denied.” I cannot believe that the Court would require federal courts to test the veracity of that statement. Yet, as we have described, that is precisely what an (unadorned) judgment denying relief already conveys. Although the Court acknowledges that “ ‘[w]e have no power to tell state courts how they must write their opinions,’ ” ante, at 9, its analysis would turn solely on how the order of judgment is styled. Resolution of this case is direct: Respondent’s claim was 6 JOHNSON v. WILLIAMS SCALIA, J., concurring in judgment “adjudicated on the merits,” because the state court ren- dered a judgment rejecting all her claims, and the judg- ment gave no indication (such as a statement that it was “without prejudice”) that it was based on a procedural or other nonmerits ground. The Court’s novel resolution of the “on the merits” ques- tion produces a clear enough answer in this case. The weight of the evidence demonstrated that it was “exceed- ingly unlikely” that the state court overlooked the federal claim. Ante, at 16. But such ready resolution will not be commonplace. Consider another case, where the federal and state claims are not related, where there is no rele- vant state precedent referring to federal law, where state law might be interpreted as less defendant-friendly than the federal standard, or where a confluence of such factors exists. The answer to whether the federal claim has been “evaluated based on the intrinsic right and wrong of the matter” is anybody’s guess. One thing, however, is cer- tain: The Court’s case-by-case approach will guarantee protracted litigation over whether a state-court judge was aware of a claim on the day he rejected it. The Court tells us not to worry about a flood of liti- gation, because the Courts of Appeals have previously al- lowed arguments from petitioners that the state courts overlooked their federal claims. Ante, at 13, and n. 4 (citing cases). But many of those cases applied a much simpler (and even less justifiable) test than the one adopted today: if the federal claim was not addressed in the opinion, then it was not adjudicated on the merits. See, e.g., 11–1182 (CA6 2006); And even those courts that attempted to “divin[e] the thought processes of” the judge limited their inquiry to “what a state court has said.” Brown v. Luebbers, 371 F. 3d 458, 461 (CA8 2004) ; see also, e.g., By Cite as: 568 U. S. (2013) 7 SCALIA, J., concurring in judgment contrast, the Court today asks whether a judge thought about the merits of an unaddressed claim, and leaves on the table any evidence relevant to that inquiry. This newly-sponsored enterprise of probing the judicial mind is inappropriately intrusive upon state-court pro- cesses. Are federal habeas courts now to consider evidence relevant to the internal deliberations of the state judici- ary? Can a petitioner introduce testimony showing that state-court judges—because of time constraints, heavy caseloads, or other reasons—fail to read the briefs but leave that to their assistants, whose recommendations they rarely reject? Or testimony showing that, typically, only one judge on the state-court appellate panel reads the briefs and considers all the claims, and the others simply join the drafted order? Has there been an “adjudication on the merits” then? Future litigation will supply the answers. For these reasons, I do not join the opinion of the Court and concur only in the judgment

Justice Thomas

majority

Arizona Dept. of Revenue v. Blaze Constr. Co.

1999-04-27

https://www.courtlistener.com/opinion/118267/arizona-dept-of-revenue-v-blaze-constr-co/

https://www.courtlistener.com/api/rest/v3/clusters/118267/

1998-027

In United States v. New Mexico, 455 U.S. 720 (1982), we held that a State generally may impose a nondiscriminatory tax upon a private company's proceeds from contracts with the Federal Government. This case asks us to determine whether that same rule applies when the federal contractor renders its services on an Indian reservation. We hold that it does. I Under the Federal Lands Highways Program, 23 U.S. C. § 204, the Federal Government finances road construction and improvement projects on federal public roads, including Indian reservation roads. Various federal agencies oversee the planning of particular projects and the allocation of funding to them. §§ 202(d), 204. The Commissioner of Indian Affairs has the responsibility to "plan, survey, design and construct" Indian reservation roads. 25 CFR § 170.3 (1998). Over a several-year period, the Bureau of Indian Affairs contracted with Blaze Construction Company to build, repair, and improve roads on the Navajo, Hopi, Fort Apache, Colorado River, Tohono O'Odham, and San Carlos Apache Indian Reservations in Arizona. Blaze is incorporated under the laws of the Blackfeet Tribe of Montana and is owned by a member of that Tribe. But, as the company concedes, Blaze is the equivalent of a non-Indian for purposes of this case because none of its work occurred on the Blackfeet Reservation. Brief in Opposition 2, n. 1; see Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 160-161 (1980). At the end of the contracting period, the Arizona Department of Revenue (Department) issued a tax deficiency assessment against Blaze for its failure to pay Arizona's transaction privilege tax on the proceeds from its contracts with the Bureau; that tax is levied on the gross receipts of companies *35 doing business in the State.[1] See Ariz. Rev. Stat. Ann. §§ 42-1306, 42-1310.16 (1991). Blaze protested the assessment and prevailed at the end of administrative proceedings, but, on review, the Arizona Tax Court granted summary judgment in the Department's favor. The Arizona Court of Appeals reversed. 190 Ariz. 262, 947 P.2d 836 (1997). It rejected the Department's argument that our decision in New Mexico, supra, controlled the case and held that federal law pre-empted the application of Arizona's transaction privilege tax to Blaze. The Arizona Supreme Court denied the Department's petition for review, with one justice voting to grant the petition. We granted certiorari, 523 U.S. 1117 (1998), and now reverse. II In New Mexico, we considered whether a State could impose gross receipts and use taxes on the property, income, and purchases of private federal contractors. To remedy "the confusing nature of our precedents" in this area, 455 U.S., at 733, we announced a clear rule: "[T]ax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned." Id., at 735. We reasoned that this "narrow approach" to the scope of governmental tax immunity "accord[ed] with competing constitutional imperatives, by giving full range to each sovereign's taxing authority." Id., at 735-736 (citing Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 483 (1939)). For that immunity to be expanded beyond these "narrow constitutional *36 limits," we explained that Congress must "take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs." 455 U.S., at 737 (emphasis added); see also Carson v. Roane-Anderson Co., 342 U.S. 232, 234 (1952). Applying those principles, we upheld each of the taxes at issue in that case because the legal incidence of the taxes fell on the contractors, not the Federal Government; the contractors could not be considered agencies or instrumentalities of the Federal Government; and Congress had not expressly exempted the contractors' activities from taxation but, rather, had expressly repealed a pre-existing statutory exemption. See New Mexico, 455 U. S., at 743-744. These principles control the resolution of this case. Absent a constitutional immunity or congressional exemption, federal law does not shield Blaze from Arizona's transaction privilege tax. See id., at 737; James v. Dravo Contracting Co., 302 U.S. 134, 161 (1937). The incidence of Arizona's transaction privilege tax falls on Blaze, not the Federal Government. Blaze does not argue that it is an agency or instrumentality of the Federal Government, and New Mexico `s clear rule would have foreclosed any such argument under these circumstances. Nor has Congress exempted these contracts from taxation. Cf. Carson, supra, at 234. Nevertheless, the Arizona Court of Appeals held (and Blaze urges here) that the tax cannot be applied to activities taking place on Indian reservations.[2] After it employed a *37 balancing test "weighing the respective state, federal, and tribal interests," Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 177 (1989), the court below held that a congressional intent to pre-empt Arizona's tax could be inferred from federal laws regulating the welfare of Indians. In cases involving taxation of on-reservation activity, we have undertaken this "particularized examination," Ramah Navajo School Bd., Inc. v. Bureau of Revenue of N. M., 458 U.S. 832, 838 (1982), where the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members. See, e. g., Cotton Petroleum Corp., supra, at 176-187 (state severance tax imposed on non-Indian lessee's production of oil and gas); Ramah, supra, at 836-846 (state gross receipts tax imposed on private contractor's proceeds from contract with tribe for school construction); Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. 160, 165-166 (1980) (tax imposed on sale of farm machinery to tribe); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-153 (1980) (motor carrier license and use fuel taxes imposed on logging and hauling operations pursuant to contract with tribal enterprise). But we have never employed this balancing test in a case such as this one where a State seeks to tax a transaction between the Federal Government and its non-Indian private contractor. We decline to do so now. Interest balancing in this setting would only cloud the clear rule established by our decision in New Mexico. The need to avoid litigation and to ensure efficient tax administration counsels in favor of a bright-line standard for taxation of federal contracts, regardless of whether the contracted-for activity takes place on Indian reservations. Cf. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458-459 (1995); County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 *38 U. S. 251, 267-268 (1992).[3] Moreover, as we recognized in New Mexico, the "political process is `uniquely adapted to accommodating' " the interests implicated by state taxation of federal contractors. 455 U.S., at 738 (quoting Massachusetts v. United States, 435 U.S. 444, 456 (1978) (plurality opinion)). Accord, Washington v. United States, 460 U.S. 536, 546 (1983). Whether to exempt Blaze from Arizona's transaction privilege tax is not our decision to make; that decision rests, instead, with the State of Arizona and with Congress. Our conclusion in no way limits the Tribes' ample opportunity to advance their interests when they choose to do so. Under the Indian Self-Determination and Education Assistance Act, 88 Stat. 2203, 25 U.S. C. § 450 et seq. (1994 ed. and Supp. III), a tribe may request the Secretary of Interior to enter into a self-determination contract "to plan, conduct, and administer programs or portions thereof, including construction programs." § 450f(a)(1). Where a tribe enters into such a contract, it assumes greater responsibility over the management of the federal funds and the operation of certain federal programs. See, e. g., 25 CFR § 900.3(b)(4) (1998). Here, the Tribes on whose reservations Blaze's work was performed have not exercised this option, and the Federal Government has retained contracting responsibility. Because the Tribes in this case have not assumed this responsibility, we have no occasion to consider whether the Indian pre-emption doctrine would apply when Tribes choose to take a more direct and active role in administering the *39 federal funds. Therefore, we see no need to depart from the clear rule announced in New Mexico. * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

In United we held that a State generally may impose a nondiscriminatory tax upon a private company's proceeds from contracts with the Federal Government. This case asks us to determine whether that same rule applies when the federal contractor renders its services on an Indian reservation. We hold that it does. I Under the Federal Lands Highways Program, 23 U.S. C. 204, the Federal Government finances road construction and improvement projects on federal public roads, including Indian reservation roads. Various federal agencies oversee the planning of particular projects and the allocation of funding to them. 202(d), 204. The Commissioner of Indian Affairs has the responsibility to "plan, survey, design and construct" Indian reservation roads. 25 CFR 170.3 Over a several-year period, the Bureau of Indian Affairs contracted with Blaze Construction Company to build, repair, and improve roads on the Navajo, Hopi, Fort Apache, Colorado River, Tohono O'Odham, and San Carlos Apache Indian Reservations in Arizona. Blaze is incorporated under the laws of the Blackfeet Tribe of Montana and is owned by a member of that Tribe. But, as the company concedes, Blaze is the equivalent of a non-Indian for purposes of this case because none of its work occurred on the Blackfeet Reservation. Brief in Opposition 2, n. 1; see At the end of the contracting period, the Arizona Department of Revenue (Department) issued a tax deficiency assessment against Blaze for its failure to pay Arizona's transaction privilege tax on the proceeds from its contracts with the Bureau; that tax is levied on the gross receipts of companies *35 doing business in the State.[1] See Ariz. Rev. Stat. Ann. 42-1306, 42-1310.16 (1991). Blaze protested the assessment and prevailed at the end of administrative proceedings, but, on review, the Arizona Tax Court granted summary judgment in the Department's favor. The Arizona Court of Appeals reversed. It rejected the Department's argument that our decision in New controlled the case and held that federal law pre-empted the application of Arizona's transaction privilege tax to Blaze. The Arizona Supreme Court denied the Department's petition for review, with one justice voting to grant the petition. We granted certiorari, and now reverse. II In New we considered whether a State could impose gross receipts and use taxes on the property, income, and purchases of private federal To remedy "the confusing nature of our precedents" in this we announced a clear rule: "[T]ax immunity is appropriate in only one circumstance: when the levy falls on the United States itself, or on an agency or instrumentality so closely connected to the Government that the two cannot realistically be viewed as separate entities, at least insofar as the activity being taxed is concerned." We reasoned that this "narrow approach" to the scope of governmental tax immunity "accord[ed] with competing constitutional imperatives, by giving full range to each sovereign's taxing authority." -736 ). For that immunity to be expanded beyond these "narrow constitutional *36 limits," we explained that Congress must "take responsibility for the decision, by so expressly providing as respects contracts in a particular form, or contracts under particular programs." ; see also Applying those principles, we upheld each of the taxes at issue in that case because the legal incidence of the taxes fell on the contractors, not the Federal Government; the contractors could not be considered agencies or instrumentalities of the Federal Government; and Congress had not expressly exempted the contractors' activities from taxation but, rather, had expressly repealed a pre-existing statutory exemption. See New -744. These principles control the resolution of this case. Absent a constitutional immunity or congressional exemption, federal law does not shield Blaze from Arizona's transaction privilege tax. See ; The incidence of Arizona's transaction privilege tax falls on Blaze, not the Federal Government. Blaze does not argue that it is an agency or instrumentality of the Federal Government, and New `s clear rule would have foreclosed any such argument under these circumstances. Nor has Congress exempted these contracts from taxation. Cf. Carson, at Nevertheless, the Arizona Court of Appeals held (and Blaze urges here) that the tax cannot be applied to activities taking place on Indian reservations.[2] After it employed a *37 balancing test "weighing the respective state, federal, and tribal interests," Cotton Petroleum v. New the court below held that a congressional intent to pre-empt Arizona's tax could be inferred from federal laws regulating the welfare of Indians. In cases involving taxation of on-reservation activity, we have undertaken this "particularized examination," Navajo School Bd., where the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members. See, e. g., Cotton Petroleum ; ; Central Machinery ; White Mountain Apache But we have never employed this balancing test in a case such as this one where a State seeks to tax a transaction between the Federal Government and its non-Indian private contractor. We decline to do so now. Interest balancing in this setting would only cloud the clear rule established by our decision in New The need to avoid litigation and to ensure efficient tax administration counsels in favor of a bright-line standard for taxation of federal contracts, regardless of whether the contracted-for activity takes place on Indian reservations. Cf. Oklahoma Tax ; County of[3] Moreover, as we recognized in New the "political process is `uniquely adapted to accommodating' " the interests implicated by state taxation of federal ). Accord, Whether to exempt Blaze from Arizona's transaction privilege tax is not our decision to make; that decision rests, instead, with the State of Arizona and with Congress. Our conclusion in no way limits the Tribes' ample opportunity to advance their interests when they choose to do so. Under the Indian Self-Determination and Education Assistance Act, 25 U.S. C. 450 et seq. (1994 ed. and Supp. III), a tribe may request the Secretary of Interior to enter into a self-determination contract "to plan, conduct, and administer programs or portions thereof, including construction programs." 450f(a)(1). Where a tribe enters into such a contract, it assumes greater responsibility over the management of the federal funds and the operation of certain federal programs. See, e. g., 25 CFR 900.3(b)(4) Here, the Tribes on whose reservations Blaze's work was performed have not exercised this option, and the Federal Government has retained contracting responsibility. Because the Tribes in this case have not assumed this responsibility, we have no occasion to consider whether the Indian pre-emption doctrine would apply when Tribes choose to take a more direct and active role in administering the *39 federal funds. Therefore, we see no need to depart from the clear rule announced in New * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Justice Sotomayor

majority

FTC v. Phoebe Putney Health System, Inc.

2013-02-19

https://www.courtlistener.com/opinion/820745/ftc-v-phoebe-putney-health-system-inc/

https://www.courtlistener.com/api/rest/v3/clusters/820745/

2012-014

Under this Court’s state-action immunity doctrine, when a local governmental entity acts pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, it is exempt from scrutiny under the federal antitrust laws. In this case, we must decide whether a Georgia law that creates special-purpose public entities called hospital authorities and gives those entities general corporate powers, including the power to acquire hospitals, clearly articulates and affirmatively expresses a state policy to permit acquisitions that substantially lessen competition. Because Georgia’s grant of general cor- porate powers to hospital authorities does not include permission to use those powers anticompetitively, we hold that the clear-articulation test is not satisfied and state­ action immunity does not apply. I A In 1941, the State of Georgia amended its Constitution to allow political subdivisions to provide health care ser­ 2 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court vices. 1941 Ga. Laws p. 50. The State concurrently enacted the Hospital Authorities Law (Law), id., at 241, Ga. Code Ann. §31–7–70 et seq. (2012), “to provide a mecha­ nism for the operation and maintenance of needed health care facilities in the several counties and municipalities of th[e] state.” §31–7–76(a). “The purpose of the constitu­ tional provision and the statute based thereon was to . . . create an organization which could carry out and make more workable the duty which the State owed to its in- digent sick.” DeJarnette v. Hospital Auth. of Albany, 195 Ga. 189, 200, 23 S.E.2d 716, 723 (1942) (citations omitted). As amended, the Law authorizes each county and municipality, and certain combinations of counties or municipalities, to create “a public body corporate and politic” called a “hospital authority.” §§31–7–72(a), (d). Hospital authorities are governed by 5- to 9-member boards that are appointed by the governing body of the county or municipality in their area of operation. §31–7– 72(a). Under the Law, a hospital authority “exercise[s] public and essential governmental functions” and is delegated “all the powers necessary or convenient to carry out and effectuate” the Law’s purposes. §31–7–75. Giving more content to that general delegation, the Law enumerates 27 powers conferred upon hospital authorities, including the power “[t]o acquire by purchase, lease, or otherwise and to operate projects,” §31–7–75(4), which are defined to in­ clude hospitals and other public health facilities, §31–7– 71(5); “[t]o construct, reconstruct, improve, alter, and repair projects,” §31–7–75(5); “[t]o lease . . . for operation by others any project” provided certain conditions are satisfied, §31–7–75(7); and “[t]o establish rates and charges for the services and use of the facilities of the authority,” §31–7–75(10). Hospital authorities may not operate or construct any project for profit, and accordingly they must set rates so as only to cover operating expenses and create Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court reasonable reserves. §31–7–77. B In the same year that the Law was adopted, the city of Albany and Dougherty County established the Hospital Authority of Albany-Dougherty County (Authority) and the Authority promptly acquired Phoebe Putney Memorial Hospital (Memorial), which has been in operation in Al- bany since 1911. In 1990, the Authority restructured its operations by forming two private nonprofit corporations to manage Memorial: Phoebe Putney Health System, Inc. (PPHS), and its subsidiary, Phoebe Putney Memorial Hospital, Inc. (PPMH). The Authority leased Memorial to PPMH for $1 per year for 40 years. Under the lease, PPMH has exclusive authority over the operation of Me­ morial, including the ability to set rates for services. Consistent with §31–7–75(7), PPMH is subject to lease conditions that require provision of care to the indigent sick and limit its rate of return. Memorial is one of two hospitals in Dougherty County. The second, Palmyra Medical Center (Palmyra), was estab­ lished in Albany in 1971 and is located just two miles from Memorial. At the time suit was brought in this case, Palmyra was operated by a national for-profit hospital network, HCA, Inc. (HCA). Together, Memorial and Pal­ myra account for 86 percent of the market for acute-care hospital services provided to commercial health care plans and their customers in the six counties surrounding Al- bany. Memorial accounts for 75 percent of that market on its own. In 2010, PPHS began discussions with HCA about acquiring Palmyra. Following negotiations, PPHS pre­ sented the Authority with a plan under which the Author­ ity would purchase Palmyra with PPHS controlled funds and then lease Palmyra to a PPHS subsidiary for $1 per year under the Memorial lease agreement. The Authority 4 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court unanimously approved the transaction. The Federal Trade Commission (FTC) shortly there­ after issued an administrative complaint alleging that the proposed purchase-and-lease transaction would create a virtual monopoly and would substantially reduce competi­ tion in the market for acute-care hospital services, in violation of §5 of the Federal Trade Commission Act, 38 Stat. 719, 15 U.S. C. §45, and §7 of the Clayton Act, 38 Stat. 731, 15 U.S. C. §18. The FTC, along with the State of Georgia,1 subsequently filed suit against the Authority, HCA, Palmyra, PPHS, PPMH, and the new PPHS subsid­ iary created to manage Palmyra (collectively respondents), seeking to enjoin the transaction pending administrative proceedings. See 15 U.S. C. §§26, 53(b). The United States District Court for the Middle District of Georgia denied the request for a preliminary injunction and granted respondents’ motion to dismiss. 793 F. Supp. 2d 1356 (2011). The District Court held that respondents are immune from antitrust liability under the state-action doctrine. See id., at 1366–1381. The United States Court of Appeals for the Eleventh Circuit affirmed. 663 F.3d 1369 (2011). As an initial matter, the court “agree[d] with the [FTC] that, on the facts alleged, the joint operation of Memorial and Palmyra would substantially lessen competition or tend to create, if not create, a monopoly.” Id., at 1375. But the court con­ cluded that the transaction was immune from antitrust liability. See id., at 1375–1378. The Court of Appeals explained that as a local governmental entity, the Author­ ity was entitled to state-action immunity if the challenged anticompetitive conduct was a “ ‘foreseeable result’ ” of Georgia’s legislation. Id., at 1375. According to the court, anticompetitive conduct is foreseeable if it could have been —————— 1 Georgia did not join the notice of appeal filed by the FTC and is no longer a party in the case. Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court “ ‘reasonably anticipated’ ” by the state legislature; it is not necessary, the court reasoned, for an anticompetitive effect to “ be ‘one that ordinarily occurs, routinely occurs, or is inherently likely to occur as a result of the empowering legislation.’ ” Id., at 1375–1376 (quoting FTC v. Hospital Bd. of Directors of Lee Cty., 38 F.3d 1184, 1188, 1190– 1191 (CA11 1994)). Applying that standard, the Court of Appeals concluded that the Law contemplated the anti­ competitive conduct challenged by the FTC. The court noted the “impressive breadth” of the powers given to hospital authorities, which include traditional powers of private corporations and a few additional capabilities, such as the power to exercise eminent domain. See 663 F.3d, at 1376. More specifically, the court reasoned that the Georgia Legislature must have anticipated that the grant of power to hospital authorities to acquire and lease projects would produce anticompetitive effects because “[f]oreseeably, acquisitions could consolidate ownership of competing hospitals, eliminating competition between them.” Id., at 1377.2 The Court of Appeals also rejected the FTC’s alternative argument that state-action immunity did not apply be­ cause the transaction in substance involved a transfer of control over Palmyra from one private entity to another, with the Authority acting as a mere conduit for the sale to evade antitrust liability. See id., at 1376, n. 12. We granted certiorari on two questions: whether the —————— 2 In tension with the Court of Appeals’ decision, other Circuits have held in analogous circumstances that substate governmental entities exercising general corporate powers were not entitled to state-action immunity. See Kay Elec. Cooperative v. Newkirk, 647 F.3d 1039, 1043, 1045–1047 (CA10 2011); First Am. Title Co. v. Devaugh, 480 F.3d 438, 456–457 (CA6 2007); Surgical Care Center of Hammond, L. C. v. Hospital Serv. Dist. No. 1, 171 F.3d 231, 235–236 (CA5 1999) (en banc); Lancaster Community Hospital v. Antelope Valley Hospital Dist., 940 F.2d 397, 402–403 (CA9 1991). 6 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court Georgia Legislature, through the powers it vested in hos­ pital authorities, clearly articulated and affirmatively expressed a state policy to displace competition in the market for hospital services; and if so, whether state­ action immunity is nonetheless inapplicable as a result of the Authority’s minimal participation in negotiating the terms of the sale of Palymra and the Authority’s limited supervision of the two hospitals’ operations. See 567 U. S. ___ (2012). Concluding that the answer to the first question is “no,” we reverse without reaching the second question.3 II In Parker v. Brown, 317 U.S. 341 (1943), this Court held that because “nothing in the language of the Sher­ man Act [15 U.S. C. §1 et seq.] or in its history” suggested that Congress intended to restrict the sovereign capacity of the States to regulate their economies, the Act should not be read to bar States from imposing market restraints “as an act of government.” Id., at 350, 352. Following Parker, we have held that under certain circumstances, immunity from the federal antitrust laws may extend to nonstate actors carrying out the State’s regulatory pro­ gram. See Patrick v. Burget, 486 U.S. 94, 99–100 (1988); Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 56–57 (1985). —————— 3 After issuing its decision, the Court of Appeals dissolved the tempo­ rary injunction that it had granted pending appeal and the transaction closed. The case is not moot, however, because the District Court on remand could enjoin respondents from taking actions that would disturb the status quo and impede a final remedial decree. See Knox v. Service Employees, 567 U. S. ___, ___ (2012) (slip op., at 7) (“A case becomes moot only when it is impossible for a court to grant any effec­ tual relief whatever to the prevailing party” (internal quotation marks omitted)); see also FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1033–1034 (CADC 2008) (opinion of Brown, J.) (rejecting a mootness argument in a similar posture). Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court But given the fundamental national values of free en­ terprise and economic competition that are embodied in the federal antitrust laws, “state-action immunity is disfa­ vored, much as are repeals by implication.” FTC v. Ticor Title Ins. Co., 504 U.S. 621, 636 (1992). Consistent with this preference, we recognize state-action immunity only when it is clear that the challenged anticompetitive con­ duct is undertaken pursuant to a regulatory scheme that “is the State’s own.” Id., at 635. Accordingly, “[c]loser analysis is required when the activity at issue is not di­ rectly that of ” the State itself, but rather “is carried out by others pursuant to state authorization.” Hoover v. Ronwin, 466 U.S. 558, 568 (1984). When determining whether the anticompetitive acts of private parties are entitled to immunity, we employ a two-part test, requiring first that “the challenged restraint . . . be one clearly articu­ lated and affirmatively expressed as state policy,” and second that “the policy . . . be actively supervised by the State.” California Retail Liquor Dealers Assn. v. Midcal Alumi- num, Inc., 445 U.S. 97, 105 (1980) (internal quotation marks omitted). This case involves allegedly anticompetitive conduct undertaken by a substate governmental entity. Because municipalities and other political subdivisions are not themselves sovereign, state-action immunity under Parker does not apply to them directly. See Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 370 (1991); Lafay- ette v. Louisiana Power & Light Co., 435 U.S. 389, 411– 413 (1978) (plurality opinion). At the same time, however, substate governmental entities do receive immunity from antitrust scrutiny when they act “pursuant to state policy to displace competition with regulation or monopoly public service.” Id., at 413.4 This rule “preserves to the States —————— 4 An amicus curiae contends that we should recognize and apply a “market participant” exception to state-action immunity because 8 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court their freedom . . . to use their municipalities to administer state regulatory policies free of the inhibitions of the fed­ eral antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation’s free­ market goals.” Id., at 415–416. As with private parties, immunity will only attach to the activities of local governmental entities if they are under­ taken pursuant to a “clearly articulated and affirmatively expressed” state policy to displace competition. Community Communications Co. v. Boulder, 455 U.S. 40, 52 (1982). But unlike private parties, such entities are not subject to the “active state supervision requirement” because they have less of an incentive to pursue their own self-interest under the guise of implementing state policies. Hallie v. Eau Claire, 471 U.S. 34, 46–47 (1985).5 “[T]o pass the ‘clear articulation’ test,” a state legisla­ ture need not “expressly state in a statute or its legislative history that the legislature intends for the delegated action to have anticompetitive effects.” Id., at 43. Rather, we explained in Hallie that state-action immunity applies if the anticompetitive effect was the “ foreseeable result” of what the State authorized. Id., at 42. We applied that —————— Georgia’s hospital authorities engage in proprietary activities. Brief for National Federation of Independent Business 6–24; see also Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 374–375, 379 (1991) (leaving open the possibility of a market participant exception). Be­ cause this argument was not raised by the parties or passed on by the lower courts, we do not consider it. United Parcel Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981). 5 The Eleventh Circuit has held that while Georgia’s hospital authori­ ties are “unique entities” that lie “somewhere between a local, general­ purpose governing body (such as a city or county) and a corporation,” they qualify as “an instrumentality, agency, or ‘political subdivision’ of Georgia for purposes of state action immunity.” Crosby v. Hospital Auth. of Valdosta & Lowndes Cty., 93 F.3d 1515, 1524–1526 (1996). The FTC has not challenged that characterization of Georgia’s hospital authorities, and we accordingly operate from the assumption that hos­ pital authorities are akin to political subdivisions. Cite as: 568 U. S. ____ (2013) 9 Opinion of the Court principle in Omni, where we concluded that the clear­ articulation test was satisfied because the suppression of competition in the billboard market was the foreseeable result of a state statute authorizing municipalities to adopt zoning ordinances regulating the construction of buildings and other structures. 499 U.S., at 373. III A Applying the clear-articulation test to the Law before us, we conclude that respondents’ claim for state-action immunity fails because there is no evidence the State affirmatively contemplated that hospital authorities would displace competition by consolidating hospital ownership. The acquisition and leasing powers exercised by the Au­ thority in the challenged transaction, which were the principal powers relied upon by the Court of Appeals in finding state-action immunity, see 663 F.3d, at 1377, mirror general powers routinely conferred by state law upon private corporations.6 Other powers possessed by hospital authorities that the Court of Appeals character­ ized as having “impressive breadth,” id., at 1376, also fit this pattern, including the ability to make and execute contracts, §31–7–75(3), to set rates for services, §31–7– 75(10), to sue and be sued, §31–7–75(1), to borrow money, §31–7–75(17), and the residual authority to exercise any or all powers possessed by private corporations, §31–7– 75(21). Our case law makes clear that state-law authority to act is insufficient to establish state-action immunity; the —————— 6 Compare Ga. Code Ann. §§31–7–75(4), (7) (2012) (authorizing hospi­ tal authorities to acquire projects and enter lease agreements), with §14–2–302 (outlining general powers of private corporations in Georgia, which include the ability to acquire and lease property), §14–2–1101 (allowing corporate mergers), and §§14–2–1201, 14–2–1202 (allowing sales of corporate assets to other corporations). 10 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court substate governmental entity must also show that it has been delegated authority to act or regulate anticompeti­ tively. See Omni, 499 U.S., at 372. In Boulder, we held that Colorado’s Home Rule Amendment allowing munici­ palities to govern local affairs did not satisfy the clear­ articulation test. 455 U.S., at 55–56. There was no doubt in that case that the city had authority as a matter of state law to pass an ordinance imposing a moratorium on a cable provider’s expansion of service. Id., at 45–46. But we rejected the proposition that “the general grant of power to enact ordinances necessarily implies state au­ thorization to enact specific anticompetitive ordinances” because such an approach “would wholly eviscerate the concepts of ‘clear articulation and affirmative expression’ that our precedents require.” Id., at 56. We explained that when a State’s position “is one of mere neutrality respecting the municipal actions challenged as anticom­ petitive,” the State cannot be said to have “ ‘contemplated’ ” those anticompetitive actions. Id., at 55. The principle articulated in Boulder controls this case. Grants of general corporate power that allow substate governmental entities to participate in a competitive marketplace should be, can be, and typically are used in ways that raise no federal antitrust concerns. As a result, a State that has delegated such general powers “can hardly be said to have ‘contemplated’ ” that they will be used anticompetitively. Ibid. See also 1A P. Areeda & H. Hovenkamp, Antitrust Law ¶225a, p. 131 (3d ed. 2006) (hereinafter Areeda & Hovenkamp) (“When a state grants power to an inferior entity, it presumably grants the pow­ er to do the thing contemplated, but not to do so anticom­ petitively”). Thus, while the Law does allow the Authority to acquire hospitals, it does not clearly articulate and affirmatively express a state policy empowering the Au­ thority to make acquisitions of existing hospitals that will substantially lessen competition. Cite as: 568 U. S. ____ (2013) 11 Opinion of the Court B In concluding otherwise, and specifically in reasoning that the Georgia Legislature “must have anticipated” that acquisitions by hospital authorities “would produce anticompetitive effects,” 663 F.3d, at 1377, the Court of Appeals applied the concept of “foreseeability” from our clear-articulation test too loosely. In Hallie, we recognized that it would “embod[y] an unrealistic view of how legislatures work and of how stat­ utes are written” to require state legislatures to explicitly authorize specific anticompetitive effects before state­ action immunity could apply. 471 U.S., at 43. “No legis­ lature,” we explained, “can be expected to catalog all of the anticipated effects” of a statute delegating authority to a substate governmental entity. Ibid. Instead, we have approached the clear-articulation inquiry more practically, but without diluting the ultimate requirement that the State must have affirmatively contemplated the displace­ ment of competition such that the challenged anticompeti­ tive effects can be attributed to the “state itself.” Parker, 317 U.S., at 352. Thus, we have concluded that a state policy to displace federal antitrust law was sufficiently expressed where the displacement of competition was the inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature. In that sce­ nario, the State must have foreseen and implicitly en­ dorsed the anticompetitive effects as consistent with its policy goals. For example, in Hallie, Wisconsin statutory law regulat­ ing the municipal provision of sewage services expressly permitted cities to limit their service to surrounding unin­ corporated areas. See 471 U.S., at 41. While unincorpo­ rated towns alleged that the city’s exercise of that power constituted an unlawful tying arrangement, an unlawful refusal to deal, and an abuse of monopoly power, we had no trouble concluding that these alleged anticompetitive 12 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court effects were affirmatively contemplated by the State be­ cause it was “clear” that they “logically would result” from the grant of authority. Id., at 42. As described by the Wisconsin Supreme Court, the state legislature “ ‘viewed annexation by the city of a surrounding unincorporated area as a reasonable quid pro quo that a city could require before extending sewer services to the area.’ ” Id., at 44– 45, n. 8 (quoting Hallie v. Chippewa Falls, 105 Wis. 2d 533, 540–541, 314 N.W.2d 321, 325 (1982)). Without immunity, federal antitrust law could have undermined that arrangement and taken completely off the table the policy option that the State clearly intended for cities to have. Similarly, in Omni, where the respondents alleged that the city had used its zoning power to protect an incumbent billboard provider against competition, we found that the clear-articulation test was easily satisfied even though the state statutes delegating zoning authority to the city did not explicitly permit the suppression of competition. We explained that “[t]he very purpose of zoning regulation is to displace unfettered business freedom in a manner that regularly has the effect of preventing normal acts of com­ petition” and that a zoning ordinance regulating the size, location, and spacing of billboards “necessarily protects existing billboards against some competition from new­ comers.” 499 U.S., at 373. Other cases in which we have found a “clear articulation” of the State’s intent to displace competition without an explicit statement have also in­ volved authorizations to act or regulate in ways that were inherently anticompetitive.7 —————— 7 See Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 64, 65, and n. 25 (1985) (finding that a state commission’s decision to encourage collective ratemaking by common carriers was entitled to state-action immunity where the legislature had left “[t]he details of the inherently anticompetitive rate-setting process . . . to the agency’s discretion”); Hallie v. Eau Claire, 471 U.S. 34, 42 (1985) Cite as: 568 U. S. ____ (2013) 13 Opinion of the Court By contrast, “simple permission to play in a market” does not “foreseeably entail permission to roughhouse in that market unlawfully.” Kay Elec. Cooperative v. Newkirk, 647 F.3d 1039, 1043 (CA10 2011). When a State grants some entity general power to act, whether it is a private corporation or a public entity like the Authority, it does so against the backdrop of federal antitrust law. See Ticor Title, 504 U.S., at 632. Of course, both private parties and local governmental entities conceivably may transgress antitrust requirements by exercising their general powers in anticompetitive ways. But a reasonable legislature’s ability to anticipate that (potentially undesir­ able) possibility falls well short of clearly articulating an affirmative state policy to displace competition with a regulatory alternative. Believing that this case falls within the scope of the foreseeability standard applied in Hallie and Omni, the Court of Appeals stated that “[i]t defies imagination to suppose the [state] legislature could have believed that every geographic market in Georgia was so replete with hospitals that authorizing acquisitions by the authorities could have no serious anticompetitive consequences.” 663 F.3d, at 1377. Respondents echo this argument, noting that each of Georgia’s 159 counties covers a small geo­ graphical area and that most of them are sparsely popu­ lated, with nearly three-quarters having fewer than 50,000 residents as of the 2010 Census. Brief for Re­ spondents 46. Even accepting, arguendo, the premise that facts about a market could make the anticompetitive use of general —————— (describing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96 (1978), as a case where there was not an “express intent to displace the antitrust laws” but where the regulatory structure at issue restrict­ ing the establishment or relocation of automobile dealerships “inher­ ently displaced unfettered business freedom” (internal quotation marks and brackets omitted)). 14 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court corporate powers “foreseeable,” we reject the Court of Appeals’ and respondents’ conclusion because only a rela­ tively small subset of the conduct permitted as a matter of state law by Ga. Code Ann. §31–7–75(4) has the potential to negatively affect competition. Contrary to the Court of Appeals’ and respondents’ characterization, §31–7–75(4) is not principally concerned with hospital authorities’ ability to acquire multiple hospitals and consolidate their opera­ tions. Section 31–7–75(4) allows authorities to acquire “projects,” which includes not only “hospitals,” but also “health care facilities, dormitories, office buildings, clinics, housing accommodations, nursing homes, rehabilitation centers, extended care facilities, and other public health facilities.” §31–7–71(5). Narrowing our focus to the mar­ ket for hospital services, the power to acquire hospitals still does not ordinarily produce anticompetitive effects. Section 31–7–75(4) was, after all, the source of power for newly formed hospital authorities to acquire a hospital in the first instance—a transaction that was unlikely to raise any antitrust concerns even in small markets because the transfer of ownership from private to public hands does not increase market concentration. See 1A Areeda & Hovenkamp ¶224e(c), at 126 (“[S]ubstitution of one mo­ nopolist for another is not an antitrust violation”). While subsequent acquisitions by authorities have the potential to reduce competition, they will raise federal antitrust concerns only in markets that are large enough to support more than one hospital but sufficiently small that the merger of competitors would lead to a significant increase in market concentration. This is too slender a reed to support the Court of Appeals’ and respondents’ inference. IV A Taking a somewhat different approach than the Court of Appeals, respondents insist that the Law should not be Cite as: 568 U. S. ____ (2013) 15 Opinion of the Court read as a mere authorization for hospital authorities to participate in the hospital-services market and exercise general corporate powers. Rather, they contend that hos­ pital authorities are granted unique powers and respon- sibilities to fulfill the State’s objective of providing all residents with access to adequate and affordable health and hospital care. See, e.g., Ga. Code Ann. §31–7–75(22). Respondents argue that in view of hospital authorities’ statutory objective, their specific attributes, and the regu­ latory context in which they operate, it was foreseeable that authorities facing capacity constraints would decide they could best serve their communities’ needs by acquir­ ing an existing local hospital rather than incur the addi­ tional expense and regulatory burden of expanding a facility or constructing a new one. See Brief for Respond­ ents 33–39. In support of this argument, respondents observe that hospital authorities are simultaneously empowered to act in ways private entities cannot while also being subject to significant regulatory constraints. On the power side, as the Court of Appeals noted, 663 F.3d, at 1376–1377, hospital authorities may acquire through eminent domain property that is “essential to the [authority’s] purposes.” §31–7–75(12).8 On the restraint side, hospital authorities are managed by a publicly accountable board, §§31–7– 74.1, 31–7–76, they must operate on a nonprofit basis, §31–7–77, and they may only lease a project for others to —————— 8 The Court of Appeals also invoked Ga. Code Ann. §31–7–84, which provides that hospital authorities do not have the power to assess taxes, but allows the applicable governing body in the authority’s area of operation to impose taxes to cover the authority’s expenses. See 663 F.3d, at 1377. This provision applies in cases in which the county or municipality has entered into a contract with a hospital authority for the use of its facilities. See §§31–7–84(a), 31–7–85. No such contract exists in this case, and respondents have not relied on this provision in briefing or argument before us. 16 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court operate after determining that doing so will promote the community’s public health needs and that the lessee will not receive more than a reasonable rate of return on its investment, §31–7–75(7). Moreover, hospital authorities operate within a broader regulatory context in which Georgia requires any party seeking to establish or signifi­ cantly expand certain medical facilities, including hospi­ tals, to obtain a certificate of need from state regulators. See §31–6–40 et seq.9 We have no doubt that Georgia’s hospital authorities differ materially from private corporations that offer hospital services. But nothing in the Law or any other provision of Georgia law clearly articulates a state policy to allow authorities to exercise their general corporate powers, including their acquisition power, without regard to negative effects on competition. The state legislature’s objective of improving access to affordable health care does not logically suggest that the State intended that hospital authorities pursue that end through mergers that create monopolies. Nor do the restrictions imposed on hospital authorities, including the requirement that they operate on a nonprofit basis, reveal such a policy. Particularly in light of our national policy favoring competition, these —————— 9 Georgia first adopted certificate of need legislation in 1978 in part to comply with a since-repealed federal law conditioning federal funding for a number of health care programs on a State’s enactment of certifi­ cate of need laws. See 1978 Ga. Laws p. 941, as amended, Ga. Code Ann. §31–6–40 et seq. (2012); see also National Health Planning and Resources Development Act of 1974, 88 Stat. 2246, repealed by §701(a), 100 Stat. 3799. Many other States also have certificate of need laws. See National Conference of State Legislatures, Certificate of Need: State Health Laws and Programs, online at http://www.ncsl.org/issues­ research/health/con-certificate-of-need-state-laws.aspx (as visited Feb. 15, 2013, and available in Clerk of Court’s case file) (indicating in “States with CON Programs” table that 35 States retained some type of certificate of need program as of December 2011 while 15 other States had such programs but have repealed them). Cite as: 568 U. S. ____ (2013) 17 Opinion of the Court restrictions should be read to reflect more modest aims. The legislature may have viewed profit generation as incompatible with its goal of providing care for the indi­ gent sick. In addition, the legislature may have believed that some hospital authorities would operate in markets with characteristics of natural monopolies, in which case the legislature could not rely on competition to control prices. See Cantor v. Detroit Edison Co., 428 U.S. 579, 595–596 (1976). We recognize that Georgia, particularly through its certificate of need requirement, does limit competition in the market for hospital services in some respects. But regulation of an industry, and even the authorization of discrete forms of anticompetitive conduct pursuant to a regulatory structure, does not establish that the State has affirmatively contemplated other forms of anticompetitive conduct that are only tangentially related. Thus, in Gold- farb v. Virginia State Bar, 421 U.S. 773 (1975), we re- jected a state-action defense to price-fixing claims where a state bar adopted a compulsory minimum fee schedule. Although the State heavily regulated the practice of law, we found no evidence that it had adopted a policy to dis­ place price competition among lawyers. Id., at 788–792. And in Cantor, we concluded that a state commission’s regulation of rates for electricity charged by a public utili­ ty did not confer state-action immunity for a claim that the utility’s free distribution of light bulbs restrained trade in the light-bulb market. 428 U.S., at 596. In this case, the fact that Georgia imposes limits on entry into the market for medical services, which apply to both hospital authorities and private corporations, does not clearly articulate a policy favoring the consolidation of existing hospitals that are engaged in active competition. Accord, FTC v. University Health, Inc., 938 F.2d 1206, 1213, n. 13 (CA11 1991). As to the Authority’s eminent domain power, it was not exercised here and we do not 18 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court find it relevant to the question whether the State author­ ized hospital authorities to consolidate market power through potentially anticompetitive acquisitions of exist­ ing hospitals. B Finally, respondents contend that to the extent there is any doubt about whether the clear-articulation test is satisfied in this context, federal courts should err on the side of recognizing immunity to avoid improper interfer­ ence with state policy choices. See Brief for Respondents 43–44. But we do not find the Law ambiguous on the question whether it clearly articulates a policy authorizing anticompetitive acquisitions; it does not. More fundamentally, respondents’ suggestion is incon­ sistent with the principle that “state-action immunity is disfavored.” Ticor Title, 504 U.S., at 636. Parker and its progeny are premised on an understanding that respect for the States’ coordinate role in government counsels against reading the federal antitrust laws to restrict the States’ sovereign capacity to regulate their economies and provide services to their citizens. But federalism and state sovereignty are poorly served by a rule of construction that would allow “essential national policies” embodied in the antitrust laws to be displaced by state delegations of authority “intended to achieve more limited ends.” 504 U.S., at 636. As an amici brief filed by 20 States in sup­ port of the FTC contends, loose application of the clear­ articulation test would attach significant unintended consequences to States’ frequent delegations of corporate authority to local bodies, effectively requiring States to disclaim any intent to displace competition to avoid inad­ vertently authorizing anticompetitive conduct. Brief for State of Illinois et al. as Amici Curiae 12–17; see also Surgical Care Center of Hammond, L. C. v. Hospital Serv. Dist. No. 1, 171 F.3d 231, 236 (CA5 1999) (en banc). We Cite as: 568 U. S. ____ (2013) 19 Opinion of the Court decline to set such a trap for unwary state legislatures. * * * We hold that Georgia has not clearly articulated and affirmatively expressed a policy to allow hospital authori­ ties to make acquisitions that substantially lessen compe­ tition. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings con­ sistent with this opinion. It is so ordered

Under this Court’s state-action immunity doctrine, when a local governmental entity acts pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, it is exempt from scrutiny under the federal antitrust laws. In this case, we must decide whether a Georgia law that creates special-purpose public entities called hospital authorities and gives those entities general corporate powers, including the power to acquire hospitals, clearly articulates and affirmatively expresses a state policy to permit acquisitions that substantially lessen competition. Because Georgia’s grant of general cor- porate powers to hospital authorities does not include permission to use those powers anticompetitively, we hold that the clear-articulation test is not satisfied and state­ action immunity does not I A In 1941, the State of Georgia amended its Constitution to allow political subdivisions to provide health care ser­ 2 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court vices. 1941 Ga. Laws p. 50. The State concurrently enacted the Hospital Authorities Law (Law), Ga. Code Ann. et seq. (2012), “to provide a mecha­ nism for the operation and maintenance of needed health care facilities in the several counties and municipalities of th[e] state.” “The purpose of the constitu­ tional provision and the statute based thereon was to create an organization which could carry out and make more workable the duty which the State owed to its in- digent sick.” (citations omitted). As amended, the Law authorizes each county and municipality, and certain combinations of counties or municipalities, to create “a public body corporate and politic” called a “hospital authority.” (d). Hospital authorities are governed by 5- to 9-member boards that are appointed by the governing body of the county or municipality in their area of operation. 72(a). Under the Law, a hospital authority “exercise[s] public and essential governmental functions” and is delegated “all the powers necessary or convenient to carry out and effectuate” the Law’s purposes. 75. Giving more content to that general delegation, the Law enumerates 27 powers conferred upon hospital authorities, including the power “[t]o acquire by purchase, lease, or otherwise and to operate projects,” 75(4), which are defined to in­ clude hospitals and other public health facilities, 71(5); “[t]o construct, reconstruct, improve, alter, and repair projects,” 75(5); “[t]o lease for operation by others any project” provided certain conditions are satisfied, 75(7); and “[t]o establish rates and charges for the services and use of the facilities of the authority,” 75(10). Hospital authorities may not operate or construct any project for profit, and accordingly they must set rates so as only to cover operating expenses and create Cite as: U. S. (2013) 3 Opinion of the Court reasonable reserves. 77. B In the same year that the Law was adopted, the city of Albany and Dougherty County established the Hospital Authority of Albany-Dougherty County (Authority) and the Authority promptly acquired Phoebe Putney Memorial Hospital (Memorial), which has been in operation in Al- bany since 1911. In 1990, the Authority restructured its operations by forming two private nonprofit corporations to manage Memorial: Phoebe Putney Health System, Inc. (PPHS), and its subsidiary, Phoebe Putney Memorial Hospital, Inc. (PPMH). The Authority leased Memorial to PPMH for $1 per year for 40 years. Under the lease, PPMH has exclusive authority over the operation of Me­ morial, including the ability to set rates for services. Consistent with 75(7), PPMH is subject to lease conditions that require provision of care to the indigent sick and limit its rate of return. Memorial is one of two hospitals in Dougherty County. The second, Palmyra Medical Center (Palmyra), was estab­ lished in Albany in 1971 and is located just two miles from Memorial. At the time suit was brought in this case, Palmyra was operated by a national for-profit hospital network, HCA, Inc. (HCA). Together, Memorial and Pal­ myra account for 86 percent of the market for acute-care hospital services provided to commercial health care plans and their customers in the six counties surrounding Al- bany. Memorial accounts for 75 percent of that market on its own. In 2010, PPHS began discussions with HCA about acquiring Palmyra. Following negotiations, PPHS pre­ sented the Authority with a plan under which the Author­ ity would purchase Palmyra with PPHS controlled funds and then lease Palmyra to a PPHS subsidiary for $1 per year under the Memorial lease agreement. The Authority 4 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court unanimously approved the transaction. The Federal Trade Commission (FTC) shortly there­ after issued an administrative complaint alleging that the proposed purchase-and-lease transaction would create a virtual monopoly and would substantially reduce competi­ tion in the market for acute-care hospital services, in violation of of the Federal Trade Commission Act, 38 Stat. 719, 15 U.S. C. and of the Clayton Act, 38 Stat. 731, 15 U.S. C. The FTC, along with the State of Georgia,1 subsequently filed suit against the Authority, HCA, Palmyra, PPHS, PPMH, and the new PPHS subsid­ iary created to manage Palmyra (collectively respondents), seeking to enjoin the transaction pending administrative proceedings. See 15 U.S. C. 53(b). The United States District Court for the Middle District of Georgia denied the request for a preliminary injunction and granted respondents’ motion to dismiss. 793 F. Supp. 2d 1356 The District Court held that respondents are immune from antitrust liability under the state-action doctrine. See at 1366–1381. The United States Court of Appeals for the Eleventh Circuit affirmed. As an initial matter, the court “agree[d] with the [FTC] that, on the facts alleged, the joint operation of Memorial and Palmyra would substantially lessen competition or tend to create, if not create, a monopoly.” But the court con­ cluded that the transaction was immune from antitrust liability. See –1378. The Court of Appeals explained that as a local governmental entity, the Author­ ity was entitled to state-action immunity if the challenged anticompetitive conduct was a “ ‘foreseeable result’ ” of Georgia’s legislation. According to the court, anticompetitive conduct is foreseeable if it could have been —————— 1 Georgia did not join the notice of appeal filed by the FTC and is no longer a party in the case. Cite as: U. S. (2013) 5 Opinion of the Court “ ‘reasonably anticipated’ ” by the state legislature; it is not necessary, the court reasoned, for an anticompetitive effect to “ be ‘one that ordinarily occurs, routinely occurs, or is inherently likely to occur as a result of the empowering legislation.’ ” –1376 (quoting 1190– 1191 (CA11 1994)). Applying that standard, the Court of Appeals concluded that the Law contemplated the anti­ competitive conduct challenged by the FTC. The court the “impressive breadth” of the powers given to hospital authorities, which include traditional powers of private corporations and a few additional capabilities, such as the power to exercise eminent domain. See 663 F.3d, More specifically, the court reasoned that the Georgia Legislature must have anticipated that the grant of power to hospital authorities to acquire and lease projects would produce anticompetitive effects because “[f]oreseeably, acquisitions could consolidate ownership of competing hospitals, eliminating competition between them.”2 The Court of Appeals also rejected the FTC’s alternative argument that state-action immunity did not apply be­ cause the transaction in substance involved a transfer of control over Palmyra from one private entity to another, with the Authority acting as a mere conduit for the sale to evade antitrust liability. See We granted certiorari on two questions: whether the —————— 2 In tension with the Court of Appeals’ decision, other Circuits have held in analogous circumstances that substate governmental entities exercising general corporate powers were not entitled to state-action immunity. See Kay Elec. 1045–1047 ; First Am. 456–457 (CA6 7); Surgical Care Center of Hammond, L. C. v. Hospital Serv. Dist. No. 1, ; Lancaster Community Hospital v. Antelope Valley Hospital Dist., 940 F.2d 397, 402–403 6 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court Georgia Legislature, through the powers it vested in hos­ pital authorities, clearly articulated and affirmatively expressed a state policy to displace competition in the market for hospital services; and if so, whether state­ action immunity is nonetheless inapplicable as a result of the Authority’s minimal participation in negotiating the terms of the sale of Palymra and the Authority’s limited supervision of the two hospitals’ operations. See 567 U. S. (2012). Concluding that the answer to the first question is “no,” we reverse without reaching the second question.3 II In this Court held that because “nothing in the language of the Sher­ man Act [15 U.S. C. et seq.] or in its history” suggested that Congress intended to restrict the sovereign capacity of the States to regulate their economies, the Act should not be read to bar States from imposing market restraints “as an act of government.” Following Parker, we have held that under certain circumstances, immunity from the federal antitrust laws may extend to nonstate actors carrying out the State’s regulatory pro­ gram. See ; Southern Motor Carriers Rate Conference, —————— 3 After issuing its decision, the Court of Appeals dissolved the tempo­ rary injunction that it had granted pending appeal and the transaction closed. The case is not moot, however, because the District Court on remand could enjoin respondents from taking actions that would disturb the status quo and impede a final remedial decree. See Knox v. Service Employees, 567 U. S. (2012) (slip op., at 7) (“A case becomes moot only when it is impossible for a court to grant any effec­ tual relief whatever to the prevailing party” (internal quotation marks omitted)); see also 1033–1034 (CADC 8) (opinion of Brown, J.) (rejecting a mootness argument in a similar posture). Cite as: U. S. (2013) 7 Opinion of the Court But given the fundamental national values of free en­ terprise and economic competition that are embodied in the federal antitrust laws, “state-action immunity is disfa­ vored, much as are repeals by implication.” Consistent with this preference, we recognize state-action immunity only when it is clear that the challenged anticompetitive con­ duct is undertaken pursuant to a regulatory scheme that “is the State’s own.” Accordingly, “[c]loser analysis is required when the activity at issue is not di­ rectly that of ” the State itself, but rather “is carried out by others pursuant to state authorization.” When determining whether the anticompetitive acts of private parties are entitled to immunity, we employ a two-part test, requiring first that “the challenged restraint be one clearly articu­ lated and affirmatively expressed as state policy,” and second that “the policy be actively supervised by the State.” California Retail Liquor Dealers (internal quotation marks omitted). This case involves allegedly anticompetitive conduct undertaken by a substate governmental entity. Because municipalities and other political subdivisions are not themselves sovereign, state-action immunity under Parker does not apply to them directly. See ; Lafay- 411– 413 (1978) (plurality opinion). At the same time, however, substate governmental entities do receive immunity from antitrust scrutiny when they act “pursuant to state policy to displace competition with regulation or monopoly public service.”4 This rule “preserves to the States —————— 4 An amicus curiae contends that we should recognize and apply a “market participant” exception to state-action immunity because 8 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court their freedom to use their municipalities to administer state regulatory policies free of the inhibitions of the fed­ eral antitrust laws without at the same time permitting purely parochial interests to disrupt the Nation’s free­ market goals.” at 415–416. As with private parties, immunity will only attach to the activities of local governmental entities if they are under­ taken pursuant to a “clearly articulated and affirmatively expressed” state policy to displace competition. Community Communications But unlike private parties, such entities are not subject to the “active state supervision requirement” because they have less of an incentive to pursue their own self-interest under the guise of implementing state policies. Hallie v. Eau Claire,5 “[T]o pass the ‘clear articulation’ test,” a state legisla­ ture need not “expressly state in a statute or its legislative history that the legislature intends for the delegated action to have anticompetitive effects.” Rather, we explained in Hallie that state-action immunity applies if the anticompetitive effect was the “ foreseeable result” of what the State authorized. We applied that —————— Georgia’s hospital authorities engage in proprietary activities. Brief for National Federation of Independent Business 6–24; see also Columbia v. Outdoor Advertising, Inc., (leaving open the possibility of a market participant exception). Be­ cause this argument was not raised by the parties or passed on by the lower courts, we do not consider it. United Parcel Service, Inc. v. Mitchell, 5 The Eleventh Circuit has held that while Georgia’s hospital authori­ ties are “unique entities” that lie “somewhere between a local, general­ purpose governing body (such as a city or county) and a corporation,” they qualify as “an instrumentality, agency, or ‘political subdivision’ of Georgia for purposes of state action immunity.” 14–16 The FTC has not challenged that characterization of Georgia’s hospital authorities, and we accordingly operate from the assumption that hos­ pital authorities are akin to political subdivisions. Cite as: U. S. (2013) 9 Opinion of the Court principle in where we concluded that the clear­ articulation test was satisfied because the suppression of competition in the billboard market was the foreseeable result of a state statute authorizing municipalities to adopt zoning ordinances regulating the construction of buildings and other III A Applying the clear-articulation test to the Law before us, we conclude that respondents’ claim for state-action immunity fails because there is no evidence the State affirmatively contemplated that hospital authorities would displace competition by consolidating hospital ownership. The acquisition and leasing powers exercised by the Au­ thority in the challenged transaction, which were the principal powers relied upon by the Court of Appeals in finding state-action immunity, see 663 F.3d, mirror general powers routinely conferred by state law upon private corporations.6 Other powers possessed by hospital authorities that the Court of Appeals character­ ized as having “impressive breadth,” also fit this pattern, including the ability to make and execute contracts, 75(3), to set rates for services, 75(10), to sue and be sued, 75(1), to borrow money, 75(17), and the residual authority to exercise any or all powers possessed by private corporations, 75(21). Our case law makes clear that state-law authority to act is insufficient to establish state-action immunity; the —————— 6 Compare Ga. Code Ann. 5(4), (7) (2012) (authorizing hospi­ tal authorities to acquire projects and enter lease agreements), with 4–2–302 (outlining general powers of private corporations in Georgia, which include the ability to acquire and lease property), 4–2–1101 (allowing corporate mergers), and §4–2–1201, 14–2–1202 (allowing sales of corporate assets to other corporations). 10 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court substate governmental entity must also show that it has been delegated authority to act or regulate anticompeti­ tively. See In Boulder, we held that Colorado’s Home Rule Amendment allowing munici­ palities to govern local affairs did not satisfy the clear­ articulation –56. There was no doubt in that case that the city had authority as a matter of state law to pass an ordinance imposing a moratorium on a cable provider’s expansion of service. at 45–46. But we rejected the proposition that “the general grant of power to enact ordinances necessarily implies state au­ thorization to enact specific anticompetitive ordinances” because such an approach “would wholly eviscerate the concepts of ‘clear articulation and affirmative expression’ that our precedents require.” We explained that when a State’s position “is one of mere neutrality respecting the municipal actions challenged as anticom­ petitive,” the State cannot be said to have “ ‘contemplated’ ” those anticompetitive actions. The principle articulated in Boulder controls this case. Grants of general corporate power that allow substate governmental entities to participate in a competitive marketplace should be, can be, and typically are used in ways that raise no federal antitrust concerns. As a result, a State that has delegated such general powers “can hardly be said to have ‘contemplated’ ” that they will be used anticompetitively. See also 1A P. Areeda & H. Hovenkamp, Antitrust Law ¶225a, p. 131 (3d ed. 6) (hereinafter Areeda & Hovenkamp) (“When a state grants power to an inferior entity, it presumably grants the pow­ er to do the thing contemplated, but not to do so anticom­ petitively”). Thus, while the Law does allow the Authority to acquire hospitals, it does not clearly articulate and affirmatively express a state policy empowering the Au­ thority to make acquisitions of existing hospitals that will substantially lessen competition. Cite as: U. S. (2013) 11 Opinion of the Court B In concluding otherwise, and specifically in reasoning that the Georgia Legislature “must have anticipated” that acquisitions by hospital authorities “would produce anticompetitive effects,” 663 F.3d, the Court of Appeals applied the concept of “foreseeability” from our clear-articulation test too loosely. In Hallie, we recognized that it would “embod[y] an unrealistic view of how legislatures work and of how stat­ utes are written” to require state legislatures to explicitly authorize specific anticompetitive effects before state­ action immunity could 471 U.S., “No legis­ lature,” we explained, “can be expected to catalog all of the anticipated effects” of a statute delegating authority to a substate governmental entity. Instead, we have approached the clear-articulation inquiry more practically, but without diluting the ultimate requirement that the State must have affirmatively contemplated the displace­ ment of competition such that the challenged anticompeti­ tive effects can be attributed to the “state itself.” Parker, 317 U.S., at 3. Thus, we have concluded that a state policy to displace federal antitrust law was sufficiently expressed where the displacement of competition was the inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature. In that sce­ nario, the State must have foreseen and implicitly en­ dorsed the anticompetitive effects as consistent with its policy goals. For example, in Hallie, Wisconsin statutory law regulat­ ing the municipal provision of sewage services expressly permitted cities to limit their service to surrounding unin­ corporated areas. See While unincorpo­ rated towns alleged that the city’s exercise of that power constituted an unlawful tying arrangement, an unlawful refusal to deal, and an abuse of monopoly power, we had no trouble concluding that these alleged anticompetitive 12 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court effects were affirmatively contemplated by the State be­ cause it was “clear” that they “logically would result” from the grant of authority. As described by the Wisconsin Supreme Court, the state legislature “ ‘viewed annexation by the city of a surrounding unincorporated area as a reasonable quid pro quo that a city could require before extending sewer services to the area.’ ” at 44– 45, n. 8 ). Without immunity, federal antitrust law could have undermined that arrangement and taken completely off the table the policy option that the State clearly intended for cities to have. Similarly, in where the respondents alleged that the city had used its zoning power to protect an incumbent billboard provider against competition, we found that the clear-articulation test was easily satisfied even though the state statutes delegating zoning authority to the city did not explicitly permit the suppression of competition. We explained that “[t]he very purpose of zoning regulation is to displace unfettered business freedom in a manner that regularly has the effect of preventing normal acts of com­ petition” and that a zoning ordinance regulating the size, location, and spacing of billboards “necessarily protects existing billboards against some competition from new­ comers.” Other cases in which we have found a “clear articulation” of the State’s intent to displace competition without an explicit statement have also in­ volved authorizations to act or regulate in ways that were inherently anticompetitive.7 —————— 7 See Southern Motor Carriers Rate Conference, (finding that a state commission’s decision to encourage collective ratemaking by common carriers was entitled to state-action immunity where the legislature had left “[t]he details of the inherently anticompetitive rate-setting process to the agency’s discretion”); Cite as: U. S. (2013) 13 Opinion of the Court By contrast, “simple permission to play in a market” does not “foreseeably entail permission to roughhouse in that market unlawfully.” Kay Elec. Cooperative v. Newkirk, When a State grants some entity general power to act, whether it is a private corporation or a public entity like the Authority, it does so against the backdrop of federal antitrust law. See Ticor Of course, both private parties and local governmental entities conceivably may transgress antitrust requirements by exercising their general powers in anticompetitive ways. But a reasonable legislature’s ability to anticipate that (potentially undesir­ able) possibility falls well short of clearly articulating an affirmative state policy to displace competition with a regulatory alternative. Believing that this case falls within the scope of the foreseeability standard applied in Hallie and the Court of Appeals stated that “[i]t defies imagination to suppose the [state] legislature could have believed that every geographic market in Georgia was so replete with hospitals that authorizing acquisitions by the authorities could have no serious anticompetitive consequences.” 663 F.3d, Respondents echo this argument, noting that each of Georgia’s 159 counties covers a small geo­ graphical area and that most of them are sparsely popu­ lated, with nearly three-quarters having fewer than 50,000 residents as of the 2010 Census. Brief for Re­ spondents 46. Even accepting, arguendo, the premise that facts about a market could make the anticompetitive use of general —————— (describing New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 439 U.S. 96 (1978), as a case where there was not an “express intent to displace the antitrust laws” but where the regulatory structure at issue restrict­ ing the establishment or relocation of automobile dealerships “inher­ ently displaced unfettered business freedom” (internal quotation marks and brackets omitted)). 14 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court corporate powers “foreseeable,” we reject the Court of Appeals’ and respondents’ conclusion because only a rela­ tively small subset of the conduct permitted as a matter of state law by Ga. Code Ann. 75(4) has the potential to negatively affect competition. Contrary to the Court of Appeals’ and respondents’ characterization, 75(4) is not principally concerned with hospital authorities’ ability to acquire multiple hospitals and consolidate their opera­ tions. Section 31–7–75(4) allows authorities to acquire “projects,” which includes not only “hospitals,” but also “health care facilities, dormitories, office buildings, clinics, housing accommodations, nursing homes, rehabilitation centers, extended care facilities, and other public health facilities.” 71(5). Narrowing our focus to the mar­ ket for hospital services, the power to acquire hospitals still does not ordinarily produce anticompetitive effects. Section 31–7–75(4) was, after all, the source of power for newly formed hospital authorities to acquire a hospital in the first instance—a transaction that was unlikely to raise any antitrust concerns even in small markets because the transfer of ownership from private to public hands does not increase market concentration. See 1A Areeda & Hovenkamp ¶224e(c), at 126 (“[S]ubstitution of one mo­ nopolist for another is not an antitrust violation”). While subsequent acquisitions by authorities have the potential to reduce competition, they will raise federal antitrust concerns only in markets that are large enough to support more than one hospital but sufficiently small that the merger of competitors would lead to a significant increase in market concentration. This is too slender a reed to support the Court of Appeals’ and respondents’ inference. IV A Taking a somewhat different approach than the Court of Appeals, respondents insist that the Law should not be Cite as: U. S. (2013) 15 Opinion of the Court read as a mere authorization for hospital authorities to participate in the hospital-services market and exercise general corporate powers. Rather, they contend that hos­ pital authorities are granted unique powers and respon- sibilities to fulfill the State’s objective of providing all residents with access to adequate and affordable health and hospital care. See, e.g., Ga. Code Ann. 75(22). Respondents argue that in view of hospital authorities’ statutory objective, their specific attributes, and the regu­ latory context in which they operate, it was foreseeable that authorities facing capacity constraints would decide they could best serve their communities’ needs by acquir­ ing an existing local hospital rather than incur the addi­ tional expense and regulatory burden of expanding a facility or constructing a new one. See Brief for Respond­ ents 33–39. In support of this argument, respondents observe that hospital authorities are simultaneously empowered to act in ways private entities cannot while also being subject to significant regulatory constraints. On the power side, as the Court of Appeals 663 F.3d, –1377, hospital authorities may acquire through eminent domain property that is “essential to the [authority’s] purposes.” 75(12).8 On the restraint side, hospital authorities are managed by a publicly accountable board, § 74.1, 31–7–76, they must operate on a nonprofit basis, 77, and they may only lease a project for others to —————— 8 The Court of Appeals also invoked Ga. Code Ann. 84, which provides that hospital authorities do not have the power to assess taxes, but allows the applicable governing body in the authority’s area of operation to impose taxes to cover the authority’s expenses. See 663 F.3d, This provision applies in cases in which the county or municipality has entered into a contract with a hospital authority for the use of its facilities. See §84(a), 31–7–85. No such contract exists in this case, and respondents have not relied on this provision in briefing or argument before us. 16 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court operate after determining that doing so will promote the community’s public health needs and that the lessee will not receive more than a reasonable rate of return on its investment, 75(7). Moreover, hospital authorities operate within a broader regulatory context in which Georgia requires any party seeking to establish or signifi­ cantly expand certain medical facilities, including hospi­ tals, to obtain a certificate of need from state regulators. See et seq.9 We have no doubt that Georgia’s hospital authorities differ materially from private corporations that offer hospital services. But nothing in the Law or any other provision of Georgia law clearly articulates a state policy to allow authorities to exercise their general corporate powers, including their acquisition power, without regard to negative effects on competition. The state legislature’s objective of improving access to affordable health care does not logically suggest that the State intended that hospital authorities pursue that end through mergers that create monopolies. Nor do the restrictions imposed on hospital authorities, including the requirement that they operate on a nonprofit basis, reveal such a policy. Particularly in light of our national policy favoring competition, these —————— 9 Georgia first adopted certificate of need legislation in 1978 in part to comply with a since-repealed federal law conditioning federal funding for a number of health care programs on a State’s enactment of certifi­ cate of need laws. See 1978 Ga. Laws p. 941, as amended, Ga. Code Ann. et seq. (2012); see also National Health Planning and Resources Development Act of 1974, repealed by 01(a), Many other States also have certificate of need laws. See National Conference of State Legislatures, Certificate of Need: State Health Laws and Programs, online at http://www.ncsl.org/issues­ research/health/con-certificate-of-need-state-laws.aspx (as visited Feb. 15, 2013, and available in Clerk of Court’s case file) (indicating in “States with CON Programs” table that 35 States retained some type of certificate of need program as of December while 15 other States had such programs but have repealed them). Cite as: U. S. (2013) 17 Opinion of the Court restrictions should be read to reflect more modest aims. The legislature may have viewed profit generation as incompatible with its goal of providing care for the indi­ gent sick. In addition, the legislature may have believed that some hospital authorities would operate in markets with characteristics of natural monopolies, in which case the legislature could not rely on competition to control prices. See 8 U.S. 579, 595–596 (1976). We recognize that Georgia, particularly through its certificate of need requirement, does limit competition in the market for hospital services in some respects. But regulation of an industry, and even the authorization of discrete forms of anticompetitive conduct pursuant to a regulatory structure, does not establish that the State has affirmatively contemplated other forms of anticompetitive conduct that are only tangentially related. Thus, in Gold- 1 U.S. 773 we re- jected a state-action defense to price-fixing claims where a state bar adopted a compulsory minimum fee schedule. Although the State heavily regulated the practice of law, we found no evidence that it had adopted a policy to dis­ place price competition among lawyers. at 788–792. And in Cantor, we concluded that a state commission’s regulation of rates for electricity charged by a public utili­ ty did not confer state-action immunity for a claim that the utility’s free distribution of light bulbs restrained trade in the light-bulb 8 U.S., at 596. In this case, the fact that Georgia imposes limits on entry into the market for medical services, which apply to both hospital authorities and private corporations, does not clearly articulate a policy favoring the consolidation of existing hospitals that are engaged in active competition. Accord, 1213, n. 13 As to the Authority’s eminent domain power, it was not exercised here and we do not 18 FTC v. PHOEBE PUTNEY HEALTH SYSTEM, INC. Opinion of the Court find it relevant to the question whether the State author­ ized hospital authorities to consolidate market power through potentially anticompetitive acquisitions of exist­ ing hospitals. B Finally, respondents contend that to the extent there is any doubt about whether the clear-articulation test is satisfied in this context, federal courts should err on the side of recognizing immunity to avoid improper interfer­ ence with state policy choices. See Brief for Respondents 43–44. But we do not find the Law ambiguous on the question whether it clearly articulates a policy authorizing anticompetitive acquisitions; it does not. More fundamentally, respondents’ suggestion is incon­ sistent with the principle that “state-action immunity is disfavored.” Ticor 504 U.S., at Parker and its progeny are premised on an understanding that respect for the States’ coordinate role in government counsels against reading the federal antitrust laws to restrict the States’ sovereign capacity to regulate their economies and provide services to their citizens. But federalism and state sovereignty are poorly served by a rule of construction that would allow “essential national policies” embodied in the antitrust laws to be displaced by state delegations of authority “intended to achieve more limited ends.” 504 U.S., at As an amici brief filed by 20 States in sup­ port of the FTC contends, loose application of the clear­ articulation test would attach significant unintended consequences to States’ frequent delegations of corporate authority to local bodies, effectively requiring States to disclaim any intent to displace competition to avoid inad­ vertently authorizing anticompetitive conduct. Brief for State of Illinois et al. as Amici Curiae 12–17; see also Surgical Care Center of Hammond, L. We Cite as: U. S. (2013) 19 Opinion of the Court decline to set such a trap for unwary state legislatures. * * * We hold that Georgia has not clearly articulated and affirmatively expressed a policy to allow hospital authori­ ties to make acquisitions that substantially lessen compe­ tition. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings con­ sistent with this opinion. It is so ordered

Justice Thomas

majority

Schindler Elevator Corp. v. United States ex rel. Kirk

2011-05-16

https://www.courtlistener.com/opinion/216806/schindler-elevator-corp-v-united-states-ex-rel-kirk/

https://www.courtlistener.com/api/rest/v3/clusters/216806/

2010-042

The False Claims Act (FCA), 31 U.S. C. §§3729–3733, prohibits submitting false or fraudulent claims for pay ment to the United States, §3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, §3730(b)(1). This case concerns the FCA’s public disclosure bar, which generally forecloses qui tam suits that are “based upon the public disclosure of allegations or transactions . . . in a congressional, adminis trative, or Government Accounting Office report, hearing, audit, or investigation.” §3730(e)(4)(A) (footnote omitted).1 We must decide whether a federal agency’s written re sponse to a request for records under the Freedom of Information Act (FOIA), 5 U.S. C. §552, constitutes a “report” within the meaning of the public disclosure bar. —————— 1 During the pendency of this case, the Patient Protection and Afford able Care Act, 124 Stat. 119, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, n. 1 (2010) (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed. 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court We hold that it does. I Petitioner Schindler Elevator Corporation manufac tures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002. Since 1999, Schindler and the United States have en tered into hundreds of contracts that are subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are “qualified covered veterans” under the statute. 38 U.S. C. §4212(d)(1). VEVRAA regulations required Schindler to agree in each of its contracts that it would “submit VETS– 100 Reports no later than September 30 of each year.” 48 CFR §52.222–37(c) (2008); see also §22.1310(b). Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler’s efforts to force him out.3 In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or —————— 2 Thefacts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler’s motion to dismiss. 3 Kirk filed a complaint with the Department of Labor’s Office of Fed eral Contract Compliance Programs (OFCCP), claiming that he had been “improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran.” App. 23a. The OFCCP investigated Schindler’s compliance with VEVRAA and found insuffi cient evidence to support Kirk’s claim. In November 2009, the Depart ment of Labor affirmed the OFCCP’s finding. 601 F.3d 94, 99 (CA2 2010). Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court fraudulent claims for payment to the United States. 31 U.S. C. §3729(a). The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. §3730. When, as here, the Gov ernment chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. §3730(d)(2). In an amended complaint filed in June 2007, Kirk al leged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA’s reporting requirements by failing to file certain required VETS–100 reports and including false information in those it did file. The company’s claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler’s VEVRAA-covered contracts exceeded $100 million. To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS–100 reports filed by Schindler for the years 1998 through 2006. The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS–100 reports filed by Schindler in 1998, 1999, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the reports filed by Schindler, 99 in all. Schindler moved to dismiss on a number of grounds, including that the FCA’s public disclosure bar deprived the District Court of jurisdiction. See §3730(e)(4)(A). The District Court granted the motion, concluding that most of Kirk’s allegations failed to state a claim and that the 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court remainder were based upon the public disclosure of alle gations or transactions in an administrative “report” or “investigation.” 606 F. Supp. 2d 448 (SDNY 2009). The Court of Appeals for the Second Circuit vacated and remanded. 601 F.3d 94 (2010). The court effectively held that an agency’s response to a FOIA request is neither a “report” nor an “investigation” within the meaning of the FCA’s public disclosure bar. See id., at 103–111 (agreeing with United States ex rel. Haight v. Catholic Healthcare West, 445 F.3d 1147 (CA9 2006), and disagreeing with United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F.3d 376 (CA3 1999)). We granted certio rari, 561 U. S. ___ (2010), and now reverse and remand. II Schindler argues that “report” in the FCA’s public dis closure bar carries its ordinary meaning and that the DOL’s written responses to Mrs. Kirk’s FOIA requests are therefore “reports.” We agree.4 A 1 Adopted in 1986, the FCA’s public disclosure bar pro vides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions in a criminal, civil, or adminis trative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of —————— 4 Becausewe conclude that a written response to a FOIA request qualifies as a “report” within the meaning of the public disclosure bar, we need not address whether an agency’s search in response to a FOIA request also qualifies as an “investigation.” Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court the information.” 31 U.S. C. §3730(e)(4)(A) (footnote omitted). Because the statute does not define “report,” we look first to the word’s ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) (“Statutory construction must begin with the lan guage employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omit ted)); Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When terms used in a statute are undefined, we give them their ordinary meaning”). A “report” is “some thing that gives information” or a “notification,” Webster’s Third New International Dictionary 1925 (1986), or “[a]n official or formal statement of facts or proceedings,” Black’s Law Dictionary 1300 (6th ed. 1990). See also 13 Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account brought by one person to another”); American Heritage Dictionary 1103 (1981) (“[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form”); Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”). This broad ordinary meaning of “report” is consistent with the generally broad scope of the FCA’s public disclo sure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision’s “entire text,” read as an “inte grated whole.” Graham County Soil and Water Conserva tion Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, ___, n. 12 (2010) (slip op., at 8, 12, n. 12); see also Tyler v. Cain, 533 U.S. 656, 662 (2001) (“We do not . . . construe the meaning of statutory terms in a vacuum”). The other sources of public disclosure in §3730(e)(4)(A), especially “news media,” suggest that the public disclosure bar pro 6 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court vides “a broa[d] sweep.” Graham County, supra, at ___ (slip op., at 8). The statute also mentions “administrative hearings” twice, reflecting intent to avoid underinclusive ness even at the risk of redundancy. The phrase “allegations or transactions” in §3730(e) (4)(A) additionally suggests a wide-reaching public disclo sure bar. Congress covered not only the disclosure of “allegations” but also “transactions,” a term that courts have recognized as having a broad meaning. See, e.g., Moore v. New York Cotton Exchange, 270 U.S. 593, 610 (1926) (“ ‘Transaction’ is a word of flexible meaning”); Hamilton v. United Healthcare of La., Inc., 310 F.3d 385, 391 (CA5 2002) (“[T]he ordinary meaning of the term ‘transaction’ is a broad reference to many different types of business dealings between parties”). 2 Nor is there any textual basis for adopting a narrower definition of “report.” The Court of Appeals, in holding that FOIA responses were not “reports,” looked to the words “hearing, audit, or investigation,” and the phrase “criminal, civil, [and] administrative hearings.” It con cluded that all of these sources “connote the synthesis of information in an investigatory context” to “serve some end of the government.” 601 F.3d, at 107; cf. Brief for Respondent 30, n. 15 (“Each is part of the government’s ongoing effort to fight fraud”). Applying the noscitur a sociis canon, the Court of Appeals then determined that these “ ‘neighboring words’ ” mandated a narrower mean ing for “report” than its ordinary meaning. 601 F.3d, at 107. The Court of Appeals committed the very error we re versed in Graham County. Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See 601 F.3d, at 107, Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court n. 6. We emphasized in Graham County that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) pro vide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). When all of the sources are considered, the reference to “news media”—which the Court of Appeals did not consider—suggests a much broader scope. Ibid. The Government similarly errs by focusing only on the adjectives “congressional, administrative, or [GAO],”5 which precede “report.” Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency reports “analogous to those that Congress and the GAO would issue or conduct.” Ibid. As we explained in Graham County, however, those three adjectives tell us nothing more than that a “report” must be governmental. See 559 U. S., at ___, n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed. Finally, applying the ordinary meaning of “report” does not render superfluous the other sources of public disclo sure in §3730(e)(4)(A). Kirk argues that reading “report” to mean “something that gives information” would sub sume the other words in the phrase “report, hearing, audit, or investigation.” Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes “to obtain information.” Ibid. (emphasis added). Those processes are thus clearly different from “something that gives information.” Moreover, the statute contem plates some redundancy: An “audit,” for example, will often be a type of “investigation.” We are not persuaded that we should adopt a “different, somewhat special meaning” of “report” over the word’s —————— 5 Although the statute refers to the “Government Accounting Office,” it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham County, 559 U. S., at ___, n. 6 (slip op., at 6, n. 6). 8 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court “primary meaning.” Muscarello v. United States, 524 U.S. 125, 130, 128 (1998). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham County, we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole “touch stone” in the statutory text is “public disclosure.” 559 U. S., at ___, ___ (slip op., at 11, 19). We chose in that case simply to give the text its “most natura[l] read[ing],” id., at ___ (slip op., at 5), and we do so again here. B A written agency response to a FOIA request falls within the ordinary meaning of “report.” FOIA requires each agency receiving a request to “notify the person making such request of [its] determination and the reasons therefor.” 5 U.S. C. §552(a)(6)(A)(i). When an agency denies a request in whole or in part, it must addi tionally “set forth the names and titles or positions of each person responsible for the denial,” “make a reasonable effort to estimate the volume of any [denied] matter,” and “provide any such estimate to the person making the request.” §§552(a)(6)(C)(i), (F). The DOL has adopted more detailed regulations implementing FOIA and man dating a response in writing. See 29 CFR §70.21(a) (2009) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); §§70.21(b)–(c) (requiring a “brief statement of the reason or reasons for [a] denial,” as well as written notification if a record “cannot be located or has been destroyed” (italics deleted)). So, too, have other federal agencies. See, e.g., 28 CFR §16.6 (2010) (Dept. of Justice); 43 CFR §2.21 (2009) (Dept. of Interior); 7 CFR §1.7 (2010) (Dept. of Agriculture). Such an agency response plainly is “something that gives information,” a “notification,” and an “official or formal statement of facts.” Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court Any records the agency produces along with its written FOIA response are part of that response, “just as if they had been reproduced as an appendix to a printed report.” Mistick, 186 F.3d, at 384, n. 5. Nothing in the public disclosure bar suggests that a document and its attach ments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed “in” that FOIA response and, therefore, disclosed “in” a report for the purposes of the public disclosure bar.6 The DOL’s three written FOIA responses to Mrs. Kirk, along with their attached records, are thus reports within the meaning of the public disclosure bar. Each response was an “official or formal statement” that “[gave] informa tion” and “notif[ied]” Mrs. Kirk of the agency’s resolution of her FOIA request. III A In interpreting a statute, “[o]ur inquiry must cease if the statutory language is unambiguous,” as we have found, and “ ‘the statutory scheme is coherent and consis tent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). We are not persuaded by asser tions that it would be anomalous to read the public disclo sure bar to encompass written FOIA responses. 1 The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a —————— 6 It is irrelevant whether a particular record is itself a report. The attached records do not “becom[e]” reports, 601 F.3d, at 109, but simply are part of a report. 10 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court lawsuit. See Graham County, 559 U. S., at ___ (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943). In response, Congress amended the statute to preclude such “parasitic” qui tam actions based on “evidence or information in the posses sion of the United States . . . at the time such suit was brought.” 559 U. S., at ___ (slip op., at 12–13) (internal quotation marks omitted). Then, in 1986, Congress re placed the so-called Government knowledge bar with the narrower public disclosure bar. Id., at ___ (slip op., at 13). The Court of Appeals concluded that it would be incon sistent with this drafting history to hold that written FOIA responses are reports. The court reasoned that doing so would “essentially resurrect, in a significant subset of cases, the government possession standard . . . repudiated in 1986.” 601 F.3d, at 109. We disagree with the Court of Appeals’ conclusion. As a threshold matter, “the drafting history of the public disclo sure bar raises more questions than it answers.” Graham County, supra, at ___ (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Gov ernment knowledge bar in a “subset of cases.” 601 F.3d, at 109. As we have observed, “[r]ather than simply repeal the Government knowledge bar,” the public disclosure bar was “an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits.” 559 U. S., at ___ (slip op., at 13) (emphasis added). If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a clas sic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. Ibid. (internal Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certifica tion requirements, submit FOIA requests until he discov ers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 (“Government contractors . . . are required to submit certifications re lated to everything from how they dispose of hazardous materials to their affirmative action plans” (citing 40 U.S. C. §3142 and 29 U.S. C. §793)).7 2 Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U.S. C. §§552(a)(1), (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA re quest would find his case barred. This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we —————— 7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that “ride the investigatory coattails of the government’s own processes.” Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that “have landed on the desk of a DOJ lawyer”). 12 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some meth- ods of public disclosure and not to others. See Graham County, supra, at ___ (slip op., at 4) (“[T]he FCA’s public disclosure bar . . . deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels” (emphasis added)). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not. We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not “based upon” the initial public disclosure. 31 U.S. C. §3730(e)(4)(A). That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., 570 F.3d 907, 915 (CA7 2009) (describing the split in authority). It may also be that such a relator qualifies for the “original source” exception.8 In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability —————— 8 An “original source” is “an individual who has direct and independ ent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” §3730(e)(4)(B). Some Courts of Appeals have narrowly construed the exception to limit “original sources” to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. Duxbury v. Ortho Biotech Prods., L. P., 579 F.3d 13, 22 (CA1 2009) (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it. Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court is pure speculation. Cf. Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting as “strained speculation” an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “reports” within the meaning of the public disclosure bar. B Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define “report” to exclude FOIA responses without excluding other documents that are indisputably reports. The Gov ernment, for example, struggled to settle on a single defi nition. Compare Brief for United States as Amicus Curiae 19 (“report” must be read to “reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts”) with id., at 21 (“A FOIA response is not a ‘report’ . . . because the federal agency is not charged with uncov ering the truth of any matter”), and Tr. of Oral Arg. 33 (“[T]he way to think about it is whether or not the agency . . . is engaging in a substantive inquiry into and a sub stantive analysis of information”). It is difficult to see how the Department of Justice’s “Annual Report” of FOIA statistics—something that is indisputably a Government report—would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act An- nual Report, Fiscal Year 2010, http://www.justice.gov/oip/ annual_report/2010/cover.htm (as visited May 12, 2011, and available in Clerk of Court’s case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Govern ment agency’s “focused inquiry.” 14 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficien cies as the Government’s. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17–18 with Brief for Respondent 34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion would exclude “a lot of things that are labeled . . . report,” id., at 22, and the second—the definition advanced by the Court of Appeals—would seem to include written FOIA responses, id., at 28–29. In the end, it appears that the “only argument is that FOIA is a different kind of mis sion”—“a special case.” Id., at 31. We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning. * * * The DOL’s three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are reports within the meaning of the public dis closure bar. Whether Kirk’s suit is “based upon . . . allegations or transactions” disclosed in those reports is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. ____ (2011) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–188 _________________ SCHINDLER ELEVATOR CORPORATION, PETI- TIONER v. UNITED STATES EX REL.

The False Claims Act (FCA), 31 U.S. C. prohibits submitting false or fraudulent claims for pay ment to the United States, and authorizes qui tam suits, in which private parties bring civil actions in the Government’s name, This case concerns the FCA’s public disclosure bar, which generally forecloses qui tam suits that are “based upon the public disclosure of allegations or transactions in a congressional, adminis trative, or Government Accounting Office report, hearing, audit, or investigation.” (footnote omitted).1 We must decide whether a federal agency’s written re sponse to a request for records under the Freedom of Information Act (FOIA), 5 U.S. C. constitutes a “report” within the meaning of the public disclosure bar. —————— 1 During the pendency of this case, the Patient Protection and Afford able Care Act, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. n. 1 (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed. 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court We hold that it does. I Petitioner Schindler Elevator Corporation manufac tures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002. Since 19, Schindler and the United States have en tered into hundreds of contracts that are subject to the Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are “qualified covered veterans” under the statute. 38 U.S. C. VEVRAA regulations required Schindler to agree in each of its contracts that it would “submit VETS– 100 Reports no later than September 30 of each year.” 48 CFR (2008); see also Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler’s efforts to force him out.3 In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or —————— 2 Thefacts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler’s motion to dismiss. 3 Kirk filed a complaint with the Department of Labor’s Office of Fed eral Contract Compliance Programs (OFCCP), claiming that he had been “improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran.” App. 23a. The OFCCP investigated Schindler’s compliance with VEVRAA and found insuffi cient evidence to support Kirk’s claim. In November the Depart ment of Labor affirmed the OFCCP’s finding. Cite as: 563 U. S. (2011) 3 Opinion of the Court fraudulent claims for payment to the United States. 31 U.S. C. The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. When, as here, the Gov ernment chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. In an amended complaint filed in June 2007, Kirk al leged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA’s reporting requirements by failing to file certain required VETS–100 and including false information in those it did file. The company’s claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler’s VEVRAA-covered contracts exceeded $100 million. To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS–100 filed by Schindler for the years 18 through The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS–100 filed by Schindler in 18, 19, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the filed by Schindler, in all. Schindler moved to dismiss on a number of grounds, including that the FCA’s public disclosure bar deprived the District Court of jurisdiction. See The District Court granted the motion, concluding that most of Kirk’s allegations failed to state a claim and that the 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court remainder were based upon the public disclosure of alle gations or transactions in an administrative “report” or “investigation.” The Court of Appeals for the Second Circuit vacated and remanded. The court effectively held that an agency’s response to a FOIA request is neither a “report” nor an “investigation” within the meaning of the FCA’s public disclosure bar. See at 103–111 and disagreeing with United States ex rel. (CA3 19)). We granted certio rari, 561 U. S. and now reverse and remand. II Schindler argues that “report” in the FCA’s public dis closure bar carries its ordinary meaning and that the DOL’s written responses to Mrs. Kirk’s FOIA requests are therefore “.” We agree.4 A 1 Adopted in 1986, the FCA’s public disclosure bar pro vides: “No court shall have jurisdiction over an action under this section based upon the public disclosure of allega tions or transactions in a criminal, civil, or adminis trative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of —————— 4 Becausewe conclude that a written response to a FOIA request qualifies as a “report” within the meaning of the public disclosure bar, we need not address whether an agency’s search in response to a FOIA request also qualifies as an “investigation.” Cite as: 563 U. S. (2011) 5 Opinion of the Court the information.” 31 U.S. C. (footnote omitted). Because the statute does not define “report,” we look first to the word’s ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. (slip op., at 7) (“Statutory construction must begin with the lan guage employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose” (internal quotation marks omit ted)); Asgrow Seed (15) (“When terms used in a statute are undefined, we give them their ordinary meaning”). A “report” is “some thing that gives information” or a “notification,” Webster’s Third New International Dictionary 1925 (1986), or “[a]n official or formal statement of facts or proceedings,” Black’s Law Dictionary 1300 (6th ed. 10). See also 13 Oxford English Dictionary 650 (2d ed. 1989) (“[a]n account brought by one person to another”); American Heritage Dictionary 1103 (1981) (“[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form”); Random House Dictionary 1634 (2d ed. 1987) (“an account or statement describing in detail an event, situation, or the like”). This broad ordinary meaning of “report” is consistent with the generally broad scope of the FCA’s public disclo sure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision’s “entire text,” read as an “inte grated whole.” Graham Soil and Water Conserva tion Dist. v. United States ex rel. Wilson, 559 U. S. n. 12 (slip op., at 8, 12, n. 12); see also Tyler v. Cain, (“We do not construe the meaning of statutory terms in a vacuum”). The other sources of public disclosure in especially “news media,” suggest that the public disclosure bar pro 6 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court vides “a broa[d] sweep.” Graham at (slip op., at 8). The statute also mentions “administrative hearings” twice, reflecting intent to avoid underinclusive ness even at the risk of redundancy. The phrase “allegations or transactions” in (4)(A) additionally suggests a wide-reaching public disclo sure bar. Congress covered not only the disclosure of “allegations” but also “transactions,” a term that courts have recognized as having a broad meaning. See, e.g., (1926) (“ ‘Transaction’ is a word of flexible meaning”); 391 (CA5 2002) (“[T]he ordinary meaning of the term ‘transaction’ is a broad reference to many different types of business dealings between parties”). 2 Nor is there any textual basis for adopting a narrower definition of “report.” The Court of Appeals, in holding that FOIA responses were not “,” looked to the words “hearing, audit, or investigation,” and the phrase “criminal, civil, [and] administrative hearings.” It con cluded that all of these sources “connote the synthesis of information in an investigatory context” to “serve some end of the government.” ; cf. Brief for Respondent 30, n. 15 (“Each is part of the government’s ongoing effort to fight fraud”). Applying the noscitur a sociis canon, the Court of Appeals then determined that these “ ‘neighboring words’ ” mandated a narrower mean ing for “report” than its ordinary meaning. 601 F.3d, at 107. The Court of Appeals committed the very error we re versed in Graham Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See Cite as: 563 U. S. (2011) 7 Opinion of the Court n. 6. We emphasized in Graham that “all of the sources [of public disclosure] listed in pro vide interpretive guidance.” 559 U. S., at (slip op., at 8). When all of the sources are considered, the reference to “news media”—which the Court of Appeals did not consider—suggests a much broader scope. The Government similarly errs by focusing only on the adjectives “congressional, administrative, or [GAO],”5 which precede “report.” Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency “analogous to those that Congress and the GAO would issue or conduct.” As we explained in Graham however, those three adjectives tell us nothing more than that a “report” must be governmental. See 559 U. S., at n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed. Finally, applying the ordinary meaning of “report” does not render superfluous the other sources of public disclo sure in Kirk argues that reading “report” to mean “something that gives information” would sub sume the other words in the phrase “report, hearing, audit, or investigation.” Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes “to obtain information.” Those processes are thus clearly different from “something that gives information.” Moreover, the statute contem plates some redundancy: An “audit,” for example, will often be a type of “investigation.” We are not persuaded that we should adopt a “different, somewhat special meaning” of “report” over the word’s —————— 5 Although the statute refers to the “Government Accounting Office,” it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham 559 U. S., at n. 6 (slip op., at 6, n. 6). 8 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court “primary meaning.” Muscarello v. United States, 524 U.S. 125, 130, 128 (18). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole “touch stone” in the statutory text is “public disclosure.” 559 U. S., at (slip op., at 11, 19). We chose in that case simply to give the text its “most natura[l] read[ing],” at (slip op., at 5), and we do so again here. B A written agency response to a FOIA request falls within the ordinary meaning of “report.” FOIA requires each agency receiving a request to “notify the person making such request of [its] determination and the reasons therefor.” 5 U.S. C. When an agency denies a request in whole or in part, it must addi tionally “set forth the names and titles or positions of each person responsible for the denial,” “make a reasonable effort to estimate the volume of any [denied] matter,” and “provide any such estimate to the person making the request.” (F). The DOL has adopted more detailed regulations implementing FOIA and man dating a response in writing. See (a) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); (requiring a “brief statement of the reason or reasons for [a] denial,” as well as written notification if a record “cannot be located or has been destroyed” (italics deleted)). So, too, have other federal agencies. See, e.g., ; ; (Dept. of Agriculture). Such an agency response plainly is “something that gives information,” a “notification,” and an “official or formal statement of facts.” Cite as: 563 U. S. (2011) 9 Opinion of the Court Any records the agency produces along with its written FOIA response are part of that response, “just as if they had been reproduced as an appendix to a printed report.” n. 5. Nothing in the public disclosure bar suggests that a document and its attach ments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed “in” that FOIA response and, therefore, disclosed “in” a report for the purposes of the public disclosure bar.6 The DOL’s three written FOIA responses to Mrs. Kirk, along with their attached records, are thus within the meaning of the public disclosure bar. Each response was an “official or formal statement” that “[gave] informa tion” and “notif[ied]” Mrs. Kirk of the agency’s resolution of her FOIA request. III A In interpreting a statute, “[o]ur inquiry must cease if the statutory language is unambiguous,” as we have found, and “ ‘the statutory scheme is coherent and consis tent.’ ” (17) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). We are not persuaded by asser tions that it would be anomalous to read the public disclo sure bar to encompass written FOIA responses. 1 The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a —————— 6 It is irrelevant whether a particular record is itself a report. The attached records do not “becom[e]” but simply are part of a report. 10 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court lawsuit. See Graham 559 U. S., at (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, In response, Congress amended the statute to preclude such “parasitic” qui tam actions based on “evidence or information in the posses sion of the United States at the time such suit was brought.” 559 U. S., at (slip op., at 12–13) (internal quotation marks omitted). Then, in 1986, Congress re placed the so-called Government knowledge bar with the narrower public disclosure bar. at (slip op., at 13). The Court of Appeals concluded that it would be incon sistent with this drafting history to hold that written FOIA responses are The court reasoned that doing so would “essentially resurrect, in a significant subset of cases, the government possession standard repudiated in 1986.” We disagree with the Court of Appeals’ conclusion. As a threshold matter, “the drafting history of the public disclo sure bar raises more questions than it answers.” Graham at (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Gov ernment knowledge bar in a “subset of cases.” 601 F.3d, at 109. As we have observed, “[r]ather than simply repeal the Government knowledge bar,” the public disclosure bar was “an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits.” 559 U. S., at (slip op., at 13) (emphasis added). If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a clas sic example of the “opportunistic” litigation that the public disclosure bar is designed to discourage. (internal Cite as: 563 U. S. (2011) 11 Opinion of the Court quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certifica tion requirements, submit FOIA requests until he discov ers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 (“Government contractors are required to submit certifications re lated to everything from how they dispose of hazardous materials to their affirmative action plans” (citing 40 U.S. C. and 29 U.S. C. 2 Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U.S. C. (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA re quest would find his case barred. This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we —————— 7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that “ride the investigatory coattails of the government’s own processes.” Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham 559 U. S., at (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that “have landed on the desk of a DOJ lawyer”). 12 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some meth- ods of public disclosure and not to others. See Graham at (slip op., at 4) (“[T]he FCA’s public disclosure bar deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels” ). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not. We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not “based upon” the initial public disclosure. 31 U.S. C. That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., (describing the split in authority). It may also be that such a relator qualifies for the “original source” exception.8 In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability —————— 8 An “original source” is “an individual who has direct and independ ent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” (4)(B). Some Courts of Appeals have narrowly construed the exception to limit “original sources” to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it. Cite as: 563 U. S. (2011) 13 Opinion of the Court is pure speculation. Cf. Graham 559 U. S., at (slip op., at 19) (rejecting as “strained speculation” an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are “” within the meaning of the public disclosure bar. B Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define “report” to exclude FOIA responses without excluding other documents that are indisputably The Gov ernment, for example, struggled to settle on a single defi nition. Compare Brief for United States as Amicus Curiae 19 (“report” must be read to “reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts”) with (“A FOIA response is not a ‘report’ because the federal agency is not charged with uncov ering the truth of any matter”), and Tr. of Oral Arg. 33 (“[T]he way to think about it is whether or not the agency is engaging in a substantive inquiry into and a sub stantive analysis of information”). It is difficult to see how the Department of Justice’s “Annual Report” of FOIA statistics—something that is indisputably a Government report—would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act An- nual Report, Fiscal Year http://www.justice.gov/oip/ annual_report//cover.htm (as visited May 12, 2011, and available in Clerk of Court’s case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Govern ment agency’s “focused inquiry.” 14 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK Opinion of the Court Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficien cies as the Government’s. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17–18 with Brief for Respondent 34–39 and Tr. of Oral Arg. 23. Kirk’s first suggestion would exclude “a lot of things that are labeled report,” at and the second—the definition advanced by the Court of Appeals—would seem to include written FOIA responses, at 28–29. In the end, it appears that the “only argument is that FOIA is a different kind of mis sion”—“a special case.” We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning. * * * The DOL’s three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are within the meaning of the public dis closure bar. Whether Kirk’s suit is “based upon allegations or transactions” disclosed in those is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 563 U. S. (2011) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–188 SCHINDLER ELEVATOR CORPORATION, PETI- TIONER v. UNITED STATES EX REL.

Justice Ginsburg

dissenting

Schindler Elevator Corp. v. United States ex rel. Kirk

2011-05-16

https://www.courtlistener.com/opinion/216806/schindler-elevator-corp-v-united-states-ex-rel-kirk/

https://www.courtlistener.com/api/rest/v3/clusters/216806/

2010-042

The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of “qualified covered veter- ans” they employ and related information. 38 U.S. C. §4212(d); 48 CFR §§22.1310(b) and 52.222–37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corpora- tion (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA’s annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler’s VEVRAA filings. The DOL responses re- vealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false in- formation. Armed with the DOL’s confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U.S. C. §3729 et seq. In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency’s response 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting to a FOIA request should not automatically qualify as a “report, hearing, audit, or investigation” preclusive of a whistleblower’s lawsuit under the public disclosure bar of the FCA, §3730(e)(4). I would affirm the Second Circuit’s judgment as faithful to the text, context, purpose, and history of the FCA’s public disclosure bar. The Court finds no “textual basis” for the Second Cir cuit’s interpretation of the statutory language. Ante, at 6. But the Court of Appeals’ opinion considered text as well as context. Leaving aside the term “report,” the court explained: “All of the other terms in [§3730(e)(4)(A)’s] list of enumerated sources connote the synthesis of informa tion in an investigatory context. ‘[C]riminal, civil, [and] administrative hearings,’ for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government ‘hear ing[s and] audit[s]’ are processes by which information is compiled with the concerted aim of deepening a government entity’s knowledge of a given subject or, often, determining whether a party is in compliance with applicable law. . . . “In this context, the term ‘report’ most readily bears a narrower meaning than simply ‘something that gives information.’ Rather, it connotes the compila tion or analysis of information with the aim of synthe sizing that information in order to serve some end of the government, as in a ‘hearing’ or ‘audit.’ It does not naturally extend to cover the mechanistic produc tion of documents in response to a FOIA request made by a member of the public.” 601 F.3d 94, 107 (2010) (citations omitted). Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL’s responses did not “synthe size the documents or their contents with the aim of itself Cite as: 563 U. S. ____ (2011) 3 GINSBURG, J., dissenting gleaning any insight or information, as . . . it necessarily would in conducting a ‘hearing’ or ‘audit.’ ” Id., at 108. Far from “compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends,” id., at 111, DOL merely assembled and duplicated records, or noted the absence of records. Contrary to the Court’s assertion, moreover, the Second Circuit was mindful of the “error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___ (2010)],” ante, at 6; the Court of Appeals used the noscitur a sociis canon only “as a guide in sifting through the common understandings of ‘report’ and ‘investigation’ to discover their intended meaning within the FCA.” 601 F.3d, at 108, n. 6. The court explained: “We . . . have not used the canon to impose commonal ity on terms that ‘do not share any . . . core of mean ing,’ Graham County, [559 U. S., at ___, n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘re port,’ ‘audit,’ and ‘investigation’ all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation fo cuses on their shared ‘core of meaning.’ ” Ibid. The Court faults the Court of Appeals for not consider ing §3730(e)(4)(A)’s “reference to ‘news media,’ ” ante, at 7, suggesting that this omission overlooked Graham County’s observation that “all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance.” 559 U. S., at ___ (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures “of allegations or transac tions . . . from the news media,” §3730(e)(4)(A) (emphasis added), share a common core of meaning with disclosures in other sources that involve “processes of uncovering and analyzing information or . . . the products of those proc 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting esses.” 601 F.3d, at 108, n. 6. The Court regards the case Kirk has brought as “a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage.” Ante, at 10. But as the Second Circuit observed: “[T]he facts of this case belie the assertion that indi viduals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdic tional bar would prevent an individual with inde pendent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is nei ther parasitic nor frivolous.” 601 F.3d, at 110 (cita tion omitted). By ranking DOL’s ministerial response an “administra tive . . . report,” akin to a “Government Accounting Office report,” §3730(e)(4)(A) (footnote omitted), the Court weak ens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whis tleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contrac tor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Con gress’ attention

The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of “qualified covered veter- ans” they employ and related information. 38 U.S. C. (b) and 52.222–37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corpora- tion (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA’s annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler’s VEVRAA filings. The DOL responses re- vealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false in- formation. Armed with the DOL’s confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U.S. C. et seq. In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency’s response 2 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting to a FOIA request should not automatically qualify as a “report, hearing, audit, or investigation” preclusive of a whistleblower’s lawsuit under the public disclosure bar of the FCA, I would affirm the Second Circuit’s judgment as faithful to the text, context, purpose, and history of the FCA’s public disclosure bar. The Court finds no “textual basis” for the Second Cir cuit’s interpretation of the statutory language. Ante, at 6. But the Court of Appeals’ opinion considered text as well as context. Leaving aside the term “report,” the court explained: “All of the other terms in list of enumerated sources connote the synthesis of informa tion in an investigatory context. ‘[C]riminal, civil, [and] administrative hearings,’ for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government ‘hear ing[s and] audit[s]’ are processes by which information is compiled with the concerted aim of deepening a government entity’s knowledge of a given subject or, often, determining whether a party is in compliance with applicable law. “In this context, the term ‘report’ most readily bears a narrower meaning than simply ‘something that gives information.’ Rather, it connotes the compila tion or analysis of information with the aim of synthe sizing that information in order to serve some end of the government, as in a ‘hearing’ or ‘audit.’ It does not naturally extend to cover the mechanistic produc tion of documents in response to a FOIA request made by a member of the public.” (citations omitted). Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL’s responses did not “synthe size the documents or their contents with the aim of itself Cite as: 563 U. S. (2011) 3 GINSBURG, J., dissenting gleaning any insight or information, as it necessarily would in conducting a ‘hearing’ or ‘audit.’ ” Far from “compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends,” DOL merely assembled and duplicated records, or noted the absence of records. Contrary to the Court’s assertion, moreover, the Second Circuit was mindful of the “error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ],” ante, at 6; the Court of Appeals used the noscitur a sociis canon only “as a guide in sifting through the common understandings of ‘report’ and ‘investigation’ to discover their intended meaning within the FCA.” 601 F.3d, n. 6. The court explained: “We have not used the canon to impose commonal ity on terms that ‘do not share any core of mean ing,’ Graham County, [559 U. S., at n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms ‘hearing,’ ‘re port,’ ‘audit,’ and ‘investigation’ all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation fo cuses on their shared ‘core of meaning.’ ” The Court faults the Court of Appeals for not consider ing “reference to ‘news media,’ ” ante, at 7, suggesting that this omission overlooked Graham County’s observation that “all of the sources [of public disclosure] listed in provide interpretive guidance.” 559 U. S., at (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures “of allegations or transac tions from the news media,” (emphasis added), share a common core of meaning with disclosures in other sources that involve “processes of uncovering and analyzing information or the products of those proc 4 SCHINDLER ELEVATOR CORP. v. UNITED STATES EX REL. KIRK GINSBURG, J., dissenting esses.” 601 F.3d, n. 6. The Court regards the case Kirk has brought as “a classic example of the ‘opportunistic’ litigation that the public disclosure bar is designed to discourage.” Ante, at 10. But as the Second Circuit observed: “[T]he facts of this case belie the assertion that indi viduals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdic tional bar would prevent an individual with inde pendent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is nei ther parasitic nor frivolous.” (cita tion omitted). By ranking DOL’s ministerial response an “administra tive report,” akin to a “Government Accounting Office report,” (footnote omitted), the Court weak ens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whis tleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contrac tor’s filings? After today’s decision, which severely limits whistleblowers’ ability to substantiate their allegations before commencing suit, that question is worthy of Con gress’ attention

Justice Breyer

majority

Nijhawan v. Holder

2009-06-15

https://www.courtlistener.com/opinion/145861/nijhawan-v-holder/

https://www.courtlistener.com/api/rest/v3/clusters/145861/

2008-070

Federal immigration law provides that any "alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii) (emphasis added). A related statute defines "aggravated felony" in terms of a set of listed offenses that includes "an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." § 1101(a)(43)(M)(i) (emphasis added). See Appendix A. The question before us is whether the italicized language refers to an element of the fraud or deceit "offense" as set forth in the particular fraud or deceit statute defining the offense of which the alien was previously convicted. If so, then in order to determine whether a prior conviction is for the kind of offense described, the immigration judge must look to the criminal fraud or deceit statute to see whether it contains a monetary threshold of $10,000 or more. See Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) (so interpreting the Armed Career Criminal *2298 Act). We conclude, however, that the italicized language does not refer to an element of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion. I Petitioner, an alien, immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. 18 U.S.C. §§ 371, 1341, 1343, 1344, 1956(h). A jury found him guilty. But because none of these statutes requires a finding of any particular amount of victim loss, the jury made no finding about the amount of the loss. At sentencing petitioner stipulated that the loss exceeded $100 million. The court then imposed a sentence of 41 months in prison and required restitution of $683 million. In 2005 the Government, claiming that petitioner had been convicted of an "aggravated felony," sought to remove him from the United States. The Immigration Judge found that petitioner's conviction was for crimes of fraud and deceit; that the sentencing stipulation and restitution order showed that the victims' loss exceeded $10,000; and that petitioner's conviction consequently fell within the immigration statute's "aggravated felony" definition. See 8 U.S.C. §§ 1101(a)(43)(M)(i), (U) (including within the definition of "aggravated felony" any "attempt or conspiracy to commit" a listed "offense"). The Board of Immigration Appeals agreed. App. to Pet. for Cert. 44a-51a. So did the Third Circuit. 523 F.3d 387 (2008). The Third Circuit noted that the statutes of conviction were silent as to amounts, but, in its view, the determination of loss amounts for "aggravated felony" purposes "requires an inquiry into the underlying facts of the case." Id., at 396 (internal quotation marks omitted). The Courts of Appeals have come to different conclusions as to whether the $10,000 threshold in subparagraph (M)(i) refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion. Compare Conteh v. Gonzales, 461 F.3d 45, 55 (C.A.1 2006) (fact-based approach); 523 F.3d 387 (same) (case below); Arguelles-Olivares v. Mukasey, 526 F.3d 171, 178 (C.A.5 2008) (same), with Dulal-Whiteway v. United States Dept. of Homeland Security, 501 F.3d 116, 131 (C.A.2 2007) (definitional approach); Kawashima v. Mukasey, 530 F.3d 1111, 1117 (C.A.9 2008) (same); Obasohan v. United States Atty. Gen., 479 F.3d 785, 791 (C.A.11 2007) (same). We granted certiorari to decide the question. II The interpretive difficulty before us reflects the linguistic fact that in ordinary speech words such as "crime," "felony," "offense," and the like sometimes refer to a generic crime, say, the crime of fraud or theft in general, and sometimes refer to the specific acts in which an offender engaged on a specific occasion, say, the fraud that the defendant planned and executed last month. See Chambers v. United States, 555 U.S. ___, ___, 129 S. Ct. 687, 690-691, 172 L. Ed. 2d 484 (2009). The question here, as we have said, is whether the italicized statutory words "offense that involves fraud or deceit in which the loss to the ... victims exceeds $10,000" should be interpreted in the first sense (which we shall call "categorical"), i.e., as referring to a generic crime, or in the second sense (which we shall call "circumstance-specific"), as referring to the specific way in which an offender committed the crime on a specific occasion. If the first, we must *2299 look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction. A The basic argument favoring the first— i.e., the "generic" or "categorical"—interpretation rests upon Taylor, Chambers, and James v. United States, 550 U.S. 192, 127 S. Ct. 1586, 167 L. Ed. 2d 532 (2007). Those cases concerned the Armed Career Criminal Act (ACCA), a statute that enhances the sentence imposed upon certain firearm-law offenders who also have three prior convictions for "a violent felony." 18 U.S.C. § 924(e). See Appendix B, infra. ACCA defines "violent felony" to include, first, felonies with elements that involve the use of physical force against another; second, felonies that amount to "burglary, arson, or extortion" or that involve the use of explosives; and third, felonies that "otherwise involv[e] conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B). In Taylor and James we held that ACCA's language read naturally uses the word "felony" to refer to a generic crime as generally committed. Chambers, supra, at ___, 129 S.Ct., at 690-691 (discussing Taylor, 495 U.S., at 602, 110 S. Ct. 2143); James, supra, at 201-202, 127 S. Ct. 1586. The Court noted that such an interpretation of the statute avoids "the practical difficulty of trying to ascertain" in a later proceeding, "perhaps from a paper record" containing only a citation (say, by number) to a statute and a guilty plea, "whether the [offender's] prior crime ... did or did not involve," say, violence. Chambers, supra, at ___, 129 S.Ct., at 690-691. Thus in James, referring to Taylor, we made clear that courts must use the "categorical method" to determine whether a conviction for "attempted burglary" was a conviction for a crime that, in ACCA's language, "involved conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). That method required the court to "examine, not the unsuccessful burglary the defendant attempted on a particular occasion, but the generic crime of attempted burglary." Chambers, supra, at ___, 129 S.Ct., at 690-691 (discussing James, supra, at 204-206, 127 S. Ct. 1586). We also noted that the categorical method is not always easy to apply. That is because sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled "Breaking and Entering at Night," for example, criminalizes breaking into a "building, ship, vessel or vehicle." Mass. Gen. Laws, ch. 266, § 16 (West 2006). In such an instance, we have said, a court must determine whether an offender's prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than into a vessel), by examining "the indictment or information and jury instructions," Taylor, supra, at 602, 110 S. Ct. 2143, or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or "some comparable judicial record" of the factual basis for the plea. Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). Petitioner argues that we should interpret the subsection of the "aggravated felony" statute before us as requiring use of this same "categorical" approach. He says that the statute's language, read naturally as in Taylor, refers to a generic kind of *2300 crime, not a crime as committed on a particular occasion. He adds that here, as in Taylor, such a reading avoids the practical difficulty of determining the nature of prior conduct from what may be a brief paper record, perhaps noting only a statutory section number and a guilty plea; or, if there is a more extensive record, combing through that record for evidence of underlying conduct. Also, the categorical approach, since it covers only criminal statutes with a relevant monetary threshold, not only provides assurance of a finding on the point, but also assures that the defendant had an opportunity to present evidence about the amount of loss. B Despite petitioner's arguments, we conclude that the "fraud and deceit" provision before us calls for a "circumstance-specific," not a "categorical," interpretation. The "aggravated felony" statute of which it is a part differs in general from ACCA, the statute at issue in Taylor. And the "fraud and deceit" provision differs specifically from ACCA's provisions. 1 Consider, first, ACCA in general. That statute defines the "violent" felonies it covers to include "burglary, arson, or extortion" and "crime[s]" that have "as an element" the use or threatened use of force. 18 U.S.C. §§ 924(e)(2)(B)(i)-(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering "crime[s]" that "involv[e] conduct that presents a serious potential risk of physical injury to another." Ibid. (emphasis added). While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined. James, supra, at 202, 127 S. Ct. 1586. Now compare the "aggravated felony" statute before us. 8 U.S.C. § 1101(a)(43). We concede that it resembles ACCA in certain respects. The "aggravated felony" statute lists several of its "offenses" in language that must refer to generic crimes. Subparagraph (A), for example, lists "murder, rape, or sexual abuse of a minor." See, e.g., Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1152 (C.A.9 2008) (en banc) (applying the categorical approach to "sexual abuse"); Singh v. Ashcroft, 383 F.3d 144, 164 (C.A.3 2004) (same); Santos v. Gonzales, 436 F.3d 323, 324 (C.A.2 2005) (per curiam) (same). Subparagraph (B) lists "illicit trafficking in a controlled substance." See Gousse v. Ashcroft, 339 F.3d 91, 95-96 (C.A.2 2003) (applying categorical approach); Fernandez v. Mukasey, 544 F.3d 862, 871-872 (C.A.7 2008) (same); Steele v. Blackman, 236 F.3d 130, 136 (C.A.3 2001) (same). And subparagraph (C) lists "illicit trafficking in firearms or destructive devices." Other sections refer specifically to an "offense described in" a particular section of the Federal Criminal Code. See, e.g., subparagraphs (E), (H), (I), (J), (L). More importantly, however, the "aggravated felony" statute differs from ACCA in that it lists certain other "offenses" using language that almost certainly does not refer to generic crimes but refers to specific circumstances. For example, subparagraph (P), after referring to "an offense" that amounts to "falsely making, forging, counterfeiting, mutilating, or altering a passport," adds, "except in the case of a first offense for which the alien ... committed the offense for the purpose of assisting... the alien's spouse, child, or parent... to violate a provision of this chapter" (emphasis added). The language about (for example) "forging ... passport[s]" may well refer to a generic crime, but the italicized exception cannot possibly refer to a generic crime. That is because there is *2301 no such generic crime; there is no criminal statute that contains any such exception. Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion. See also subparagraph (N) (similar exception). The statute has other provisions that contain qualifying language that certainly seems to call for circumstance-specific application. Subparagraph (K)(ii), for example, lists "offense[s] . . . described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage" (emphasis added). Of the three specifically listed criminal statutory sections only one subsection (namely, § 2423(d)) says anything about commercial advantage. Thus, unless the "commercial advantage" language calls for circumstance-specific application, the statute's explicit references to §§ 2421 and 2422 would be pointless. But see Gertsenshteyn v. United States Dept. of Justice, 544 F.3d 137, 144-145 (C.A.2 2008). Subparagraph (M)(ii) provides yet another example. It refers to an offense "described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000" (emphasis added). There is no offense "described in section 7201 of title 26" that has a specific loss amount as an element. Again, unless the "revenue loss" language calls for circumstance-specific application, the tax-evasion provision would be pointless. The upshot is that the "aggravated felony" statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed. The question before us then is to which category subparagraph (M)(i) belongs. 2 Subparagraph (M)(i) refers to "an offense that . . . involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" (emphasis added). The language of the provision is consistent with a circumstance-specific approach. The words "in which" (which modify "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements of the offense. Moreover, subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the internal revenue provision we have just discussed, and it is identical in structure to that provision. Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations. IBP, Inc. v. Alvarez, 546 U.S. 21, 34, 126 S. Ct. 514, 163 L. Ed. 2d 288 (2005). Moreover, to apply a categorical approach here would leave subparagraph (M)(i) with little, if any, meaningful application. We have found no widely applicable federal fraud statute that contains a relevant monetary loss threshold. See, e.g., 18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud the United States), 666 (theft in federally funded programs), 1028 (fraud in connection with identification documents), 1029 (fraud in connection with access devices), 1030 (fraud in connection with computers), 1347 (health care fraud), and 1348 (securities fraud). Petitioner has found only three federal fraud statutes that do so, and those three contain thresholds not of $10,000, but of $100,000 or $1 million, §§ 668 (theft by fraud of an artwork worth $100,000 or more), 1031(a) (contract fraud against the United States where the contract is worth at least $1 *2302 million), and 1039(d) (providing enhanced penalties for fraud in obtaining telephone records, where the scheme involves more than $100,000). Why would Congress intend subparagraph (M)(i) to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other, nonexistent statutes as well? We recognize, as petitioner argues, that Congress might have intended subparagraph (M)(i) to apply almost exclusively to those who violate certain state fraud and deceit statutes. So we have examined state law. See Appendix C, infra. We have found, however, that in 1996, when Congress added the $10,000 threshold in subparagraph (M)(i), see Illegal Immigration Reform and Immigrant Responsibility Act § 321(a)(7), 110 Stat. 3009-628, 29 States had no major fraud or deceit statute with any relevant monetary threshold. In 13 of the remaining 21 States, fraud and deceit statutes contain relevant monetary thresholds but with amounts significantly higher than $10,000, leaving only 8 States with statutes in respect to which subparagraph (M)(i)'s $10,000 threshold, as categorically interpreted, would have full effect. We do not believe Congress would have intended (M)(i) to apply in so limited and so haphazard a manner. Cf. United States v. Hayes, 555 U.S. ___, ___, 129 S. Ct. 1079, 1087-1088, 172 L. Ed. 2d 816 (2009) (reaching similar conclusion for similar reason in respect to a statute referring to crimes involving "domestic violence"). Petitioner next points to 8 U.S.C. § 1326, which criminalizes illegal entry after removal and imposes a higher maximum sentence when an alien's removal was "subsequent to a conviction for commission of an aggravated felony." § 1326(b)(2). Petitioner says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution under that statute, because loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, Brief for Respondent 49-50; Tr. of Oral Arg. 39-40, eliminating any constitutional concern. Cf. Hayes, supra, at ___, 129 S.Ct., at 1087. We conclude that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion. III Petitioner, as an alternative argument, says that we should nonetheless borrow from Taylor what that case called a "modified categorical approach." He says that, for reasons of fairness, we should insist that a jury verdict, or a judge-approved equivalent, embody a determination that the loss involved in a prior fraud or deceit conviction amounted to at least $10,000. To determine whether that is so, petitioner says, the subsequent immigration court applying subparagraph (M)(i) should examine only charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a trial but no jury, the subsequent court should examine the equivalent judge-made findings. If there was a guilty plea (and no trial), the subsequent court should examine the written plea documents or the plea colloquy. To authorize any broader examination of the prior proceedings, petitioner *2303 says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute. We agree with petitioner that the statute foresees the use of fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to victims. But we do not agree that fairness requires the evidentiary limitations he proposes. For one thing, we have found nothing in prior law that so limits the immigration court. Taylor, James, and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction. See supra, at 2299-2300; Taylor, 495 U.S., at 602, 110 S. Ct. 2143; Shepard, 544 U.S., at 26, 125 S. Ct. 1254. For another, petitioner's proposal itself can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that (given our Part II determination) is not an element of the offense. Further, a deportation proceeding is a civil proceeding in which the Government does not have to prove its claim "beyond a reasonable doubt." At the same time the evidence that the Government offers must meet a "clear and convincing" standard. 8 U.S.C. § 1229a(c)(3)(A). And, as the Government points out, the "loss" must "be tied to the specific counts covered by the conviction." Brief for Respondent 44; see, e.g., Alaka v. Attorney General of United States, 456 F.3d 88, 107 (C.A.3 2006) (loss amount must be tethered to offense of conviction; amount cannot be based on acquitted or dismissed counts or general conduct); Knutsen v. Gonzales, 429 F.3d 733, 739-740 (C.A.7 2005) (same). And the Government adds that the "sole purpose" of the "aggravated felony" inquiry "is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself." Brief for Respondent 44 (internal quotation marks omitted). Finally, the Board of Immigration Appeals, too, has recognized that immigration judges must assess findings made at sentencing "with an eye to what losses are covered and to the burden of proof employed." In re Babaisakov, 24 I. & N. Dec. 306, 319 (2007). These considerations, taken together, mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor. We can find nothing unfair about the immigration judge's having here relied upon earlier sentencing-related material. The defendant's own stipulation, produced for sentencing purposes, shows that the conviction involved losses considerably greater than $10,000. The court's restitution order shows the same. In the absence of any conflicting evidence (and petitioner mentions none), this evidence is clear and convincing. The Court of Appeals concluded that petitioner's prior federal conviction consequently *2304 falls within the scope of subparagraph (M)(i). And we affirm its judgment. It is so ordered.

Federal immigration law provides that any "alien who is convicted of an aggravated felony at any time after admission is deportable." (a)(2)(A)(iii) A related statute defines "aggravated felony" in terms of a set of listed offenses that includes "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000." 1101(a)(43)(M)(i) See Appendix A. The question before us is whether the italicized language refers to an element of the fraud or deceit "offense" as set forth in the particular fraud or deceit statute defining the offense of which the alien was previously convicted. If so, then in order to determine whether a prior conviction is for the kind of offense described, the immigration judge must look to the criminal fraud or deceit statute to see whether it contains a monetary threshold of $10,000 or more. See We conclude, however, that the italicized language does not refer to an element of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion. I Petitioner, an alien, immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. 18 U.S.C. 371, 11, 13, 14, 1956(h). A jury found him guilty. But because none of these statutes requires a finding of any particular amount of victim loss, the jury made no finding about the amount of the loss. At sentencing petitioner stipulated that the loss exceeded $100 million. The court then imposed a sentence of 41 months in prison and required restitution of $683 million. In the Government, claiming that petitioner had been convicted of an "aggravated felony," sought to remove him from the United States. The Immigration Judge found that petitioner's conviction was for crimes of fraud and deceit; that the sentencing stipulation and restitution order showed that the victims' loss exceeded $10,000; and that petitioner's conviction consequently fell within the immigration statute's "aggravated felony" definition. See 8 U.S.C. 1101(a)(43)(M)(i), (U) (including within the definition of "aggravated felony" any "attempt or conspiracy to commit" a listed "offense"). The Board of Immigration Appeals agreed. App. to Pet. for Cert. 44a-51a. So did the Third Circuit. The Third Circuit noted that the statutes of conviction were silent as to amounts, but, in its view, the determination of loss amounts for "aggravated felony" purposes "requires an inquiry into the underlying facts of the case." The Courts of Appeals have come to different conclusions as to whether the $10,000 threshold in subparagraph (M)(i) refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion. Compare ; (case below); with ; ; We granted certiorari to decide the question. II The interpretive difficulty before us reflects the linguistic fact that in ordinary speech words such as "crime," "felony," "offense," and the like sometimes refer to a generic crime, say, the crime of fraud or theft in general, and sometimes refer to the specific acts in which an offender engaged on a specific occasion, say, the fraud that the defendant planned and executed last month. See v. United States, 5 U.S. The question here, as we have said, is whether the italicized statutory words "offense that involves fraud or deceit in which the loss to the victims exceeds $10,000" should be interpreted in the first sense (which we shall call "categorical"), i.e., as referring to a generic crime, or in the second sense (which we shall call "circumstance-specific"), as referring to the specific way in which an offender committed the crime on a specific occasion. If the first, we must *2299 look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender's conviction. A The basic argument favoring the first— i.e., the "generic" or "categorical"—interpretation rests upon and 0 U.S. 192, Those cases concerned the Armed Career Criminal Act (ACCA), a statute that enhances the sentence imposed upon certain firearm-law offenders who also have three prior convictions for "a violent felony." 18 U.S.C. 924(e). See Appendix B, infra. ACCA defines "violent felony" to include, first, felonies with elements that involve the use of physical force against another; second, felonies that amount to "burglary, arson, or extortion" or that involve the use of explosives; and third, felonies that "otherwise involv[e] conduct that presents a serious potential risk of physical injury to another." 924(e)(2)(B). In and we held that ACCA's language read naturally uses the word "felony" to refer to a generic crime as generally committed. at 129 S.Ct., at (discussing ); The Court noted that such an interpretation of the statute avoids "the practical difficulty of trying to ascertain" in a later proceeding, "perhaps from a paper record" containing only a citation (say, by number) to a statute and a guilty plea, "whether the [offender's] prior crime did or did not involve," say, violence. at 129 S.Ct., at Thus in referring to we made clear that courts must use the "categorical method" to determine whether a conviction for "attempted burglary" was a conviction for a crime that, in ACCA's language, "involved conduct that presents a serious potential risk of physical injury to another." 924(e)(2)(B)(ii). That method required the court to "examine, not the unsuccessful burglary the defendant attempted on a particular occasion, but the generic crime of attempted burglary." at 129 S.Ct., at (discussing ). We also noted that the categorical method is not always easy to apply. That is because sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled "Breaking and Entering at Night," for example, criminalizes breaking into a "building, ship, vessel or vehicle." Mass. Gen. Laws, ch. 6, 16 In such an instance, we have said, a court must determine whether an offender's prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than into a vessel), by examining "the indictment or information and jury instructions," Petitioner argues that we should interpret the subsection of the "aggravated felony" statute before us as requiring use of this same "categorical" approach. He says that the statute's language, read naturally as in refers to a generic kind of *2300 crime, not a crime as committed on a particular occasion. He adds that here, as in such a reading avoids the practical difficulty of determining the nature of prior conduct from what may be a brief paper record, perhaps noting only a statutory section number and a guilty plea; or, if there is a more extensive record, combing through that record for evidence of underlying conduct. Also, the categorical approach, since it covers only criminal statutes with a relevant monetary threshold, not only provides assurance of a finding on the point, but also assures that the defendant had an opportunity to present evidence about the amount of loss. B Despite petitioner's arguments, we conclude that the "fraud and deceit" provision before us calls for a "circumstance-specific," not a "categorical," interpretation. The "aggravated felony" statute of which it is a part differs in general from ACCA, the statute at issue in And the "fraud and deceit" provision differs specifically from ACCA's provisions. 1 Consider, first, ACCA in general. That statute defines the "violent" felonies it covers to include "burglary, arson, or extortion" and "crime[s]" that have "as an element" the use or threatened use of force. 18 U.S.C. 924(e)(2)(B)(i)-(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering "crime[s]" that "involv[e] conduct that presents a serious potential risk of physical injury to another." While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined. Now compare the "aggravated felony" statute before us. 8 U.S.C. 1101(a)(43). We concede that it resembles ACCA in certain respects. The "aggravated felony" statute lists several of its "offenses" in language that must refer to generic crimes. Subparagraph (A), for example, lists "murder, rape, or sexual abuse of a minor." See, e.g., (applying the categorical approach to "sexual abuse"); ; Subparagraph (B) lists "illicit trafficking in a controlled substance." See ; ; And subparagraph (C) lists "illicit trafficking in firearms or destructive devices." Other sections refer specifically to an "offense described in" a particular section of the Federal Criminal Code. See, e.g., subparagraphs (E), (H), (I), (J), (L). More importantly, however, the "aggravated felony" statute differs from ACCA in that it lists certain other "offenses" using language that almost certainly does not refer to generic crimes but refers to specific circumstances. For example, subparagraph (P), after referring to "an offense" that amounts to "falsely making, forging, counterfeiting, mutilating, or altering a passport," adds, "except in the case of a first offense for which the alien committed the offense for the purpose of assisting. the alien's spouse, child, or parent. to violate a provision of this chapter" The language about (for example) "forging passport[s]" may well refer to a generic crime, but the italicized exception cannot possibly refer to a generic crime. That is because there is *2301 no such generic crime; there is no criminal statute that contains any such exception. Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion. See also subparagraph (N) (similar exception). The statute has other provisions that contain qualifying language that certainly seems to call for circumstance-specific application. Subparagraph (K)(ii), for example, lists "offense[s] described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage" Of the three specifically listed criminal statutory sections only one subsection (namely, 2423(d)) says anything about commercial advantage. Thus, unless the "commercial advantage" language calls for circumstance-specific application, the statute's explicit references to 2421 and 2422 would be pointless. But see Subparagraph (M)(ii) provides yet another example. It refers to an offense "described in section 7201 of title (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000" There is no offense "described in section 7201 of title " that has a specific loss amount as an element. Again, unless the "revenue loss" language calls for circumstance-specific application, the tax-evasion provision would be pointless. The upshot is that the "aggravated felony" statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed. The question before us then is to which category subparagraph (M)(i) belongs. 2 Subparagraph (M)(i) refers to "an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" The language of the provision is consistent with a circumstance-specific approach. The words "in which" (which modify "offense") can refer to the conduct involved "in" the commission of the offense of conviction, rather than to the elements of the offense. Moreover, subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the internal revenue provision we have just discussed, and it is identical in structure to that provision. Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations. IBP, 1 S. Ct. 514, Moreover, to apply a categorical approach here would leave subparagraph (M)(i) with little, if any, meaningful application. We have found no widely applicable federal fraud statute that contains a relevant monetary loss threshold. See, e.g., 18 U.S.C. 11 13 (wire fraud), 14 (bank fraud), 371 (conspiracy to defraud the United States), 666 (theft in federally funded programs), 1028 (fraud in connection with identification documents), 1029 (fraud in connection with access devices), 1030 (fraud in connection with computers), 17 (health care fraud), and 18 (securities fraud). Petitioner has found only three federal fraud statutes that do so, and those three contain thresholds not of $10,000, but of $100,000 or $1 million, 668 (theft by fraud of an artwork worth $100,000 or more), 1031(a) (contract fraud against the United States where the contract is worth at least $1 *2302 million), and 1039(d) (providing enhanced penalties for fraud in obtaining telephone records, where the scheme involves more than $100,000). Why would Congress intend subparagraph (M)(i) to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other, nonexistent statutes as well? We recognize, as petitioner argues, that Congress might have intended subparagraph (M)(i) to apply almost exclusively to those who violate certain state fraud and deceit statutes. So we have examined state law. See Appendix C, infra. We have found, however, that in 1996, when Congress added the $10,000 threshold in subparagraph (M)(i), see Illegal Immigration Reform and Immigrant Responsibility Act 321(a)(7), -628, 29 States had no major fraud or deceit statute with any relevant monetary threshold. In 13 of the remaining 21 States, fraud and deceit statutes contain relevant monetary thresholds but with amounts significantly higher than $10,000, leaving only 8 States with statutes in respect to which subparagraph (M)(i)'s $10,000 threshold, as categorically interpreted, would have full effect. We do not believe Congress would have intended (M)(i) to apply in so limited and so haphazard a manner. Cf. United States v. Hayes, 5 U.S. Petitioner next points to 8 U.S.C. 13, which criminalizes illegal entry after removal and imposes a higher maximum sentence when an alien's removal was "subsequent to a conviction for commission of an aggravated felony." 13(b)(2). Petitioner says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution under that statute, because loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, Brief for Respondent 49-50; Tr. of Oral Arg. 39-40, eliminating any constitutional concern. Cf. Hayes, at We conclude that Congress did not intend subparagraph (M)(i)'s monetary threshold to be applied categorically, i.e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender's commission of a fraud and deceit crime on a specific occasion. III Petitioner, as an alternative argument, says that we should nonetheless borrow from what that case called a "modified categorical approach." He says that, for reasons of fairness, we should insist that a jury verdict, or a judge-approved equivalent, embody a determination that the loss involved in a prior fraud or deceit conviction amounted to at least $10,000. To determine whether that is so, petitioner says, the subsequent immigration court applying subparagraph (M)(i) should examine only charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a trial but no jury, the subsequent court should examine the equivalent judge-made findings. If there was a guilty plea (and no trial), the subsequent court should examine the written plea documents or the plea colloquy. To authorize any broader examination of the prior proceedings, petitioner *2303 says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute. We agree with petitioner that the statute foresees the use of fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to victims. But we do not agree that fairness requires the evidentiary limitations he proposes. For one thing, we have found nothing in prior law that so limits the immigration court. and the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction. See ; ; 544 U.S., at For another, petitioner's proposal itself can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that (given our Part II determination) is not an element of the offense. Further, a deportation proceeding is a civil proceeding in which the Government does not have to prove its claim "beyond a reasonable doubt." At the same time the evidence that the Government offers must meet a "clear and convincing" standard. 8 U.S.C. 1229a(c)(3)(A). And, as the Government points out, the "loss" must "be tied to the specific counts covered by the conviction." Brief for Respondent 44; see, e.g., ; And the Government adds that the "sole purpose" of the "aggravated felony" inquiry "is to ascertain the nature of a prior conviction; it is not an invitation to relitigate the conviction itself." Brief for Respondent 44 Finally, the Board of Immigration Appeals, too, has recognized that immigration judges must assess findings made at sentencing "with an eye to what losses are covered and to the burden of proof employed." In re Babaisakov, These considerations, taken together, mean that petitioner and those in similar circumstances have at least one and possibly two opportunities to contest the amount of loss, the first at the earlier sentencing and the second at the deportation hearing itself. They also mean that, since the Government must show the amount of loss by clear and convincing evidence, uncertainties caused by the passage of time are likely to count in the alien's favor. We can find nothing unfair about the immigration judge's having here relied upon earlier sentencing-related material. The defendant's own stipulation, produced for sentencing purposes, shows that the conviction involved losses considerably greater than $10,000. The court's restitution order shows the same. In the absence of any conflicting evidence (and petitioner mentions none), this evidence is clear and convincing. The Court of Appeals concluded that petitioner's prior federal conviction consequently *2304 falls within the scope of subparagraph (M)(i). And we affirm its judgment. It is so ordered.

Justice Alito

majority

Knox v. Service Employees

2012-06-21

https://www.courtlistener.com/opinion/802771/knox-v-service-employees/

https://www.courtlistener.com/api/rest/v3/clusters/802771/

2011-070

In this case, we decide whether the First Amendment allows a public-sector union to require objecting nonmem- bers to pay a special fee for the purpose of financing the union’s political and ideological activities. I A Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union selected by the majority. Cal. Govt. Code Ann. §3502.5(a) (West 2010). While employees in the unit are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union services related to collective bargaining (so-called chargeable expenses). See Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 524 (1991); Machinists v. Street, 367 U.S. 740, 760 (1961). Our prior cases have recognized that such arrangements represent an “impingement” on the First Amendment rights of nonmembers. Teachers v. Hudson, 475 U.S. 292, 2 KNOX v. SERVICE EMPLOYEES Opinion of the Court 307, n. 20 (1986). See also Davenport v. Washington Ed. Assn., 551 U.S. 177, 181 (2007) (“[A]gency-shop arrange- ments in the public sector raise First Amendment con- cerns because they force individuals to contribute money to unions as a condition of government employment”); Street, supra, at 749 (union shop presents First Amend- ment “questions of the utmost gravity”). Thus, in Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), we held that a public-sector union, while permitted to bill nonmembers for chargeable expenses, may not require nonmembers to fund its political and ideological projects. And in Hudson, we identified procedural requirements that a union must meet in order to collect fees from nonmembers without violating their rights. 475 U. S., at 302–311. The First Amendment, we held, does not permit a public-sector union to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining. Id., at 305. In the interest of administrative convenience, however, we concluded that a union “cannot be faulted” for calculating the fee that nonmembers must pay “on the basis of its expenses during the preceding year.” Id., at 307, n. 18. Hudson concerned a union’s regular annual fees. The present case, by contrast, concerns the First Amendment requirements applicable to a special assessment or dues increase that is levied to meet expenses that were not disclosed when the amount of the regular assessment was set. B In June 2005, respondent, the Service Employees Inter- national Union, Local 1000 (SEIU), sent out its regular Hudson notice informing employees what the agency fee would be for the year ahead. The notice set monthly dues at 1% of an employee’s gross monthly salary but capped Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court monthly dues at $45. Based on the most recently audited year, the SEIU estimated that 56.35% of its total expendi- tures in the coming year would be dedicated to chargeable collective-bargaining activities. Thus, if a nonunion em- ployee objected within 30 days to payment of the full amount of union dues, the objecting employee was re- quired to pay only 56.35% of total dues. The SEIU’s notice also included a feature that was not present in Hudson: The notice stated that the agency fee was subject to in- crease at any time without further notice. During this time, the citizens of the State of California were engaged in a wide-ranging political debate regarding state budget deficits, and in particular the budget conse- quences of growing compensation for public employees backed by powerful public-sector unions. On June 13, 2005, Governor Arnold Schwarzenegger called for a special election to be held in November 2005, where voters would consider various ballot propositions aimed at state-level structural reforms. Two of the most controversial issues on the ballot were Propositions 75 and 76. Proposition 75 would have required unions to obtain employees’ affirma- tive consent before charging them fees to be used for polit- ical purposes. Proposition 76 would have limited state spending and would have given the Governor the ability under some circumstances to reduce state appropriations for public-employee compensation. The SEIU joined a coalition of public-sector unions in vigorously opposing these measures. Calling itself the “Alliance for a Better California,” the group would eventually raise “more than $10 million, with almost all of it coming from public em- ployee unions, including $2.75 million from state worker unions, $4.7 million from the California Teachers Associa- tion, and $700,000 from school workers unions.”1 —————— 1 Marinucci & Wildermuth, Schwarzenegger Adds Prop. 75 to His Agenda, San Francisco Chronicle, Sept. 18, 2005, p. A–17. 4 KNOX v. SERVICE EMPLOYEES Opinion of the Court On July 30, shortly after the end of the 30-day objection period for the June Hudson notice, the SEIU proposed a temporary 25% increase in employee fees, which it billed as an “Emergency Temporary Assessment to Build a Po- litical Fight-Back Fund.” App. 25. The proposal stated that the money was needed to achieve the union’s political objectives, both in the special November 2005 election and in the November 2006 election. Id., at 26. According to the proposal, money in the Fight-Back Fund would be used “for a broad range of political expenses, including television and radio advertising, direct mail, voter regis- tration, voter education, and get out the vote activities in our work sites and in our communities across California.” Ibid. The proposal specifically stated that “[t]he Fund will not be used for regular costs of the union—such as office rent, staff salaries or routine equipment replacement, etc.” Ibid. It noted that “all other public worker unions are in the process of raising the extraordinary funds needed to defeat the Governor.” Id., at 27. And it concluded: “Each of us must do our part to turn back these initiatives which would allow the Governor to destroy our wages and bene- fits and even our jobs, and threaten the well-being of all Californians.” Ibid. On August 27, the SEIU’s General Council voted to implement the proposal. On August 31, the SEIU sent out a letter addressed to “Local 1000 Members and Fair Share Fee Payers,” an- nouncing that, for a limited period, their fees would be raised to 1.25% of gross monthly salary and the $45-per- month cap on regular dues would not apply. Id., at 31. The letter explained that the union would use the fund to “defeat Proposition 76 and Proposition 75 on November 8,” and to “defeat another attack on [its] pension plan” in June 2006. Ibid. The letter also informed employees that, in the following year, the money would help “to elect a governor and a legislature who support public employees and the services [they] provide.” Ibid. Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court After receiving this letter, one of the plaintiffs in this case called the SEIU’s offices to complain that the union was levying the special assessment for political purposes without giving employees a fair opportunity to object. An SEIU area manager responded that “even if [the em- ployee] objected to the payment of the full agency fee, there was nothing he could do about the September increase for the Assessment.” Knox v. Westly, No. 2:05–cv–02198, 2008 WL 850128, *3 (ED Cal., Mar. 28, 2008). “She also stated that ‘we are in the fight of our lives,’ that the Assessment was needed, and that there was nothing that could be done to stop the Union’s expenditure of that Assessment for political purposes.” Ibid. As a consolation, however, those employees who had filed timely objections after the regular June Hudson notice were required to pay only 56.35% of the temporary increase. Petitioners filed this class-action suit on behalf of 28,000 nonunion employees who were forced to contribute money to the Political Fight-Back Fund. Some of the class mem- bers had filed timely objections after receiving the regular Hudson notice in June, and others had not. Those who had objected argued that it was wrong to require them to pay 56.35% of the temporary assessment, which had been billed as intended for use in making political expenditures that they found objectionable. Those who had not objected after receiving the June Hudson notice contended that they should have received a new opportunity to object when the SEIU levied the special assessment for its Politi- cal Fight-Back Fund. The District Court granted summary judgment for the petitioners, finding that the union “fully intended to use the 12 million additional dollars it anticipated to raise for political purposes.” 2008 WL 850128, *7. “Even if every cent of the assessment was not intended to be used for entirely political purposes,” the court stated, “it is clear that the Union’s intent was to depart drastically from its 6 KNOX v. SERVICE EMPLOYEES Opinion of the Court typical spending regime and to focus on activities that were political or ideological in nature.” Id., at *8. In light of this fact, the court held that it would be inappropriate for the union to rely on previous annual expenditures to estimate that 56.35% of the new fee would go toward chargeable expenses. The court ordered the SEIU to send out a new notice giving all class members 45 days to object and to provide those who objected with a full refund of their contributions to the Political Fight-Back Fund. Id., at *12. A divided panel of the Ninth Circuit reversed. Knox v. California State Employees Assn., Local 1000, 628 F. 3d 1115 (2010). According to the panel majority, Hudson prescribed the use of a balancing test. 628 F. 3d, at 1119– 1120. The majority therefore inquired whether the proce- dure that the SEIU employed reasonably accommodated the interests of the union, the employer, and nonmember employees. Id., at 1120–1123. Judge Wallace dissented, arguing that the majority had misinterpreted Hudson and sanctioned the abridgment of the First Amendment rights of nonmembers. 628 F. 3d, at 1123–1139. We granted certiorari. 564 U. S. ___ (2011). II The SEIU argues that we should dismiss this case as moot. In opposing the petition for certiorari, the SEIU defended the decision below on the merits. After certiorari was granted, however, the union sent out a notice offering a full refund to all class members, and the union then promptly moved for dismissal of the case on the ground of mootness. Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye. See City News & Novelty, Inc. v. Waukesha, 531 U.S. 278, 283–284 (2001). The vol- untary cessation of challenged conduct does not ordinar- ily render a case moot because a dismissal for mootness Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court would permit a resumption of the challenged conduct as soon as the case is dismissed. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982). And here, since the union continues to defend the legality of the Political Fight-Back fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future. The union argues that concerns about voluntary cessa- tion are inapplicable in this case because petitioners do not seek any prospective relief. See Motion to Dismiss as Moot 11–12. But even if that is so, the union’s mootness argument fails because there is still a live controversy as to the adequacy of the SEIU’s refund notice. A case be- comes moot only when it is impossible for a court to grant “ ‘ “any effectual relief whatever” to the prevailing party.’ ” Erie v. Pap’s A. M., 529 U.S. 277, 287 (2000) (quoting Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992), in turn quoting Mills v. Green, 159 U.S. 651, 653 (1895)). “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Ellis v. Railway Clerks, 466 U.S. 435, 442 (1984). The District Court ordered the SEIU to send out a “proper” notice giving employees an adequate opportunity to receive a full refund. 2008 WL 850128, *12. Petitioners argue that the notice that the SEIU sent was improper because it includes a host of “conditions, caveats, and confusions as unnecessary complications aimed at reduc- ing the number of class members who claim a refund.” Brief for Petitioners in Opposition to Motion to Dismiss 19. In particular, petitioners allege that the union has refused to accept refund requests by fax or e-mail and has made refunds conditional upon the provision of an original signature and a Social Security number. Id., at 18–19. As this dispute illustrates, the nature of the notice may affect how many employees who object to the union’s special 8 KNOX v. SERVICE EMPLOYEES Opinion of the Court assessment will be able to get their money back. The union is not entitled to dictate unilaterally the manner in which it advertises the availability of the refund. For this reason, we conclude that a live controversy remains, and we proceed to the merits. III A Our cases have often noted the close connection between our Nation’s commitment to self-government and the rights protected by the First Amendment. See, e.g., Brown v. Hartlage, 456 U.S. 45, 52 (1982) (“At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed”); Buckley v. Valeo, 424 U.S. 1, 93, n. 127 (1976) (per curiam) (“[T]he central purpose of the Speech and Press Clauses was to assure a society in which ‘uninhibited, robust, and wide-open’ public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish”); Cox v. Louisiana, 379 U.S. 536, 552 (1965) (“Maintenance of the opportunity for free political discus- sion is a basic tenet of our constitutional democracy”); Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 465 (1907) (Harlan, J., dissenting). The First Amendment creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208 (2008). See also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988); Mills v. Alabama, 384 U.S. 214, 218–219 (1966). The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court ideas that it approves. See R. A. V. v. St. Paul, 505 U.S. 377, 382 (1992); Brandenburg v. Ohio, 395 U.S. 444, 447– 448 (1969) (per curiam); West Virginia Bd. of Ed. v. Bar- nette, 319 U.S. 624 (1943); Wooley v. Maynard, 430 U.S. 705, 713–715 (1977); Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 797 (1988) (The First Amendment protects “the decision of both what to say and what not to say” (emphasis deleted)). And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460–461 (1958). Closely related to compelled speech and compelled association is compelled funding of the speech of other private speakers or groups. See Abood, 431 U. S., at 222–223. In United States v. United Foods, Inc., 533 U.S. 405 (2001), we considered the constitutionality of a state scheme that compelled such funding. The subject of the speech at issue—promoting the sale of mushrooms—was not one that is likely to stir the passions of many, but the mundane commercial nature of that speech only high- lights the importance of our analysis and our holding. The federal Mushroom Promotion, Research, and Con- sumer Information Act required that fresh mushroom handlers pay assessments used primarily to fund adver- tisements promoting mushroom sales. A large producer objected to subsidizing these generic ads, and even though we applied the less demanding standard used in prior cases to judge laws affecting commercial speech, we held that the challenged scheme violated the First Amendment. We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme 10 KNOX v. SERVICE EMPLOYEES Opinion of the Court involving a “mandated association” among those who are required to pay the subsidy. Id., at 414. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] . . . that cannot be achieved through means significantly less restrictive of associational freedoms.” Roberts, supra, at 623. Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.” United Foods, supra, at 414. B When a State establishes an “agency shop” that ex- acts compulsory union fees as a condition of public employ- ment, “[t]he dissenting employee is forced to support financially an organization with whose principles and demands he may disagree.” Ellis, 466 U. S., at 455. Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48–49, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amend- ment rights.” Ellis, supra, at 455. Our cases to date have tolerated this “impingement,” and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake. “The primary purpose” of permitting unions to collect fees from nonmembers, we have said, is “to prevent non- members from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” Daven- port, 551 U. S., at 181. Such free-rider arguments, however, are generally insufficient to overcome First Amend- Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court ment objections. Consider the following examples: “If a community association engages in a clean-up campaign or opposes encroachments by industrial de- velopment, no one suggests that all residents or prop- erty owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all par- ents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be re- quired to join. If a medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs.”2 Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a portion of union dues represents something of an anomaly—one that we have found to be justified by the interest in furthering “labor peace.” Hudson, 475 U. S., at 303. But it is an anomaly nevertheless. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable portion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts “do not presume acquiescence in the loss of fundamental rights.” College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 682 (1999) (internal quotation marks omitted). Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activi- ties, what is the justification for putting the burden on the nonmember to opt out of making such a payment? —————— 2 Summers, Book Review, Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory, 16 Comparative Labor L. J. 262, 268 (1995). 12 KNOX v. SERVICE EMPLOYEES Opinion of the Court Shouldn’t the default rule comport with the probable preferences of most nonmembers? And isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” Hudson, supra, at 305 (internal quotation marks omitted). Although the difference between opt-out and opt-in schemes is important, our prior cases have given sur- prisingly little attention to this distinction. Indeed, ac- ceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles. The trail begins with dicta in Street, where we consid- ered whether a federal collective-bargaining statute au- thorized a union to impose compulsory fees for political activities. 367 U. S., at 774. The plaintiffs were employ- ees who had affirmatively objected to the way their fees were being used, and so we took that feature of the case for granted. We held that the statute did not authorize the use of the objecting employees’ fees for ideological purposes, and we stated in passing that “dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.” Ibid. In making that offhand remark, we did not pause to consider the broader constitutional implications of an affirmative opt-out requirement. Nor did we explore the extent of First Amendment protection for employees who might not qual- ify as active “dissenters” but who would nonetheless prefer to keep their own money rather than subsidizing by de- Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court fault the political agenda of a state-favored union. In later cases such as Abood and Hudson, we assumed without any focused analysis that the dicta from Street had authorized the opt-out requirement as a constitutional matter. Thus in Hudson we did not take issue with the union’s practice of giving employees annual notice and an opportunity to object to expected political expenditures. At the same time, however, we made it clear that the procedures used by a union to collect money from non- members must satisfy a high standard. Contrary to the view of the Ninth Circuit panel major- ity, we did not call for a balancing of the “right” of the union to collect an agency fee against the First Amend- ment rights of nonmembers. 628 F. 3d, at 1119–1120. As we noted in Davenport, “unions have no constitutional entitlement to the fees of nonmember-employees.” 551 U. S., at 185. A union’s “collection of fees from nonmem- bers is authorized by an act of legislative grace,” 628 F. 3d, at 1126 (Wallace, J., dissenting)—one that we have termed “unusual” and “extraordinary,” Davenport, supra, at 184, 187. Far from calling for a balancing of rights or interests, Hudson made it clear that any procedure for exacting fees from unwilling contributors must be “care- fully tailored to minimize the infringement” of free speech rights. 475 U. S., at 303. And to underscore the meaning of this careful tailoring, we followed that statement with a citation to cases holding that measures burdening the freedom of speech or association must serve a “compelling interest” and must not be significantly broader than nec- essary to serve that interest.3 —————— 3 The specific citation was as follows: “See Roberts v. United States Jaycees, [468 U.S. 609, 623 (1984)] (Infringements on freedom of association ‘may be justified by regu- lations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means signifi- cantly less restrictive of associational freedoms’); Elrod v. Burns, 427 14 KNOX v. SERVICE EMPLOYEES Opinion of the Court IV By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collec- tion of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. The SEIU, how- ever, asks us to go farther. It asks us to approve a proce- dure under which (a) a special assessment billed for use in electoral campaigns was assessed without providing a new opportunity for nonmembers to decide whether they wished to contribute to this effort and (b) nonmembers who previously opted out were nevertheless required to pay more than half of the special assessment even though the union had said that the purpose of the fund was to mount a political campaign and that it would not be used for ordinary union expenses. This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible. A First, we see no justification for the union’s failure to provide a fresh Hudson notice. Hudson rests on the prin- ciple that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having “a fair opportunity” to assess the im- pact of paying for nonchargeable union activities. 475 U. S., at 303. Giving employees only one opportunity per year to make this choice is tolerable if employees are able at the time in question to make an informed choice. But —————— U. S. 347, 363 (1976) (government means must be ‘least restrictive of freedom of belief and association’); Kusper v. Pontikes, 414 U.S. 51, 58–59 (1973) (‘[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty’); NAACP v. Button, 371 U.S. 415, 438 (1963) (‘Precision of reg- ulation must be the touchstone’ in the First Amendment context).” Hudson, 475 U. S., at 303, n. 11. Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court a nonmember cannot make an informed choice about a special assessment or dues increase that is unknown when the annual notice is sent. When a union levies a special assessment or raises dues as a result of unexpected devel- opments, the factors influencing a nonmember’s choice may change. In particular, a nonmember may take special exception to the uses for which the additional funds are sought.4 The present case provides a striking example. The special assessment in this case was billed for use in a broad electoral campaign designed to defeat two important and controversial ballot initiatives and to elect sympa- thetic candidates in the 2006 gubernatorial and legislative elections. There were undoubtedly nonmembers who, for one reason or another, chose not to opt out or neglected to do so when the standard Hudson notice was sent but who took strong exception to the SEIU’s political objectives and did not want to subsidize those efforts. These nonmem- bers might have favored one or both of the ballot initia- tives; they might have wished to support the reelection of the incumbent Governor; or they might not have wanted to delegate to the union the authority to decide which candidates in the 2006 elections would receive a share of their money. The effect on nonmembers was particularly striking with respect to the union’s campaign against Proposition 75 because that initiative would have bolstered nonmem- ber rights. If Proposition 75 had passed, nonmembers would have been exempt from paying for the SEIU’s ex- tensive political projects unless they affirmatively con- —————— 4 The dissent suggests that the union gave fair notice because it an- nounced at the beginning of the year that “ ‘[d]ues are subject to change without further notice to fee payers.’ ” Post, at 12 (opinion of BREYER, J.). But a union cannot define the scope of its own notice obligations simply by promulgating a clause giving itself the power to increase fees at any time for any purpose without further notice. 16 KNOX v. SERVICE EMPLOYEES Opinion of the Court sented. Thus, the effect of the SEIU’s procedure was to force many nonmembers to subsidize a political effort designed to restrict their own rights. As Hudson held, procedures for collecting fees from nonmembers must be carefully tailored to minimize im- pingement on First Amendment rights, and the procedure used in this case cannot possibly be considered to have met that standard. After the dues increase was adopted, the SEIU wrote to all employees in the relevant bargain- ing units to inform them of this development. It would have been a relatively simple matter for the union to cast this letter in the form of a new Hudson notice, so that nonmembers could decide whether they wanted to pay for the union’s electoral project. The SEIU argues that we should not be troubled by its failure to provide a new notice because nonmembers who objected to the special assessment but were nonetheless required to pay it would have been given the chance to recover the funds in question by opting out when the next annual notice was sent. If the special assessment was used entirely or in part for nonchargeable purposes, they suggest, the percentage of the union’s annual expenditures for chargeable purposes would decrease, and therefore the amount of the dues payable by objecting nonmembers the following year would also decrease. This decrease, how- ever, would not fully recompense nonmembers who did not opt out after receiving the regular notice but would have opted out if they had been permitted to do so when the special assessment was announced.5 And in any event, even a full refund would not undo the violation of First Amendment rights. As we have recognized, the First —————— 5 These nonmembers, after paying the full amount of the special as- sessment, would be required during the subsequent year to pay at least as much as those nonmembers who did opt out when they received the initial Hudson notice. Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full. See Hudson, supra, at 305; Ellis, 466 U. S., at 444. Here, for nonmembers who disagreed with the SEIU’s electoral objectives, a refund provided after the union’s objectives had already been achieved would be cold comfort.6 To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out. Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all. Even if this burden can be justified during the collection of regular dues on an annual basis, there is no way to justify the additional burden of imposing yet another opt-out requirement to collect special fees whenever the union desires. B 1 The SEIU’s treatment of nonmembers who opted out —————— 6 JUSTICE SOTOMAYOR contends that a new Hudson notice should be required only when a special assessment is imposed for political pur- poses. Post, at 2 (opinion concurring in judgment). But as even the dissent acknowledges, post, at 7, such a rule would be unworkable. First, our cases have recognized that a union’s money is fungible, so even if the new fee were spent entirely for nonpolitical activities, it would free up other funds to be spent for political purposes. See Retail Clerks v. Schermerhorn, 373 U.S. 746, 753 (1963) (noting that particu- lar fee earmarks are “of bookkeeping significance only rather than a matter of real substance”). And second, unless we can rely on unions to advertise the true purpose behind every special fee, it is not clear how a court could make a timely determination of whether each new fee is political in nature. It would be practically impossible to require the parties to litigate the purpose of every fee merely to determine whether notice is required. 18 KNOX v. SERVICE EMPLOYEES Opinion of the Court when the initial Hudson notice was sent also ran afoul of the First Amendment. The SEIU required these employ- ees to pay 56.35% of the special assessment, just as they had been required to pay 56.35% of the regular annual dues. But the union proclaimed that the special assess- ment would be used to support an electoral campaign and would not be used for ordinary union expenses. Accord- ingly, there is no reason to suppose that 56.35% of the new assessment was used for properly chargeable expenses. On the contrary, if the union is to be taken at its word, virtually all of the money was slated for nonchargeable uses. The procedure accepted in Hudson is designed for use when a union sends out its regular annual dues notices. The procedure is predicated on the assumption that a union’s allocation of funds for chargeable and noncharge- able purposes is not likely to vary greatly from one year to the next.7 No such assumption is reasonable, however, when a union levies a special assessment or raises dues as a result of events that were not anticipated or disclosed at the time when a yearly Hudson notice was sent. Accord- ingly, use of figures based on an audit of the union’s oper- ations during an entire previous year makes no sense. Nor would it be feasible to devise a new breakdown of chargeable and nonchargeable expenses for the special assessment. Determining that breakdown is problematic enough when it is done on a regular annual basis because auditors typically do not make a legal determination as to whether particular expenditures are chargeable. Instead, —————— 7 The SEIU contends that “[s]ignificant fluctuations in the chargeable and nonchargeable proportions of a union’s spending are inevitable,” Brief for Respondent 13, and the dissent appears to agree, post, at 10. But if the Hudson Court had proceeded on this assumption it is doubt- ful that it would have found it acceptable for a union to rely solely on the breakdown in the most recent year rather than computing the average breakdown over a longer period. Cite as: 567 U. S. ____ (2012) 19 Opinion of the Court the auditors take the union’s characterization for granted and perform the simple accounting function of “ensur[ing] that the expenditures which the union claims it made for certain expenses were actually made for those expenses.” Andrews v. Education Assn. of Cheshire, 829 F.2d 335, 340 (CA2 1987). Thus, if a union takes a very broad view of what is chargeable—if, for example, it believes that supporting sympathetic political candidates is chargeable and bases its classification on that view—the auditors will classify these political expenditures as chargeable. Object- ing employees may then contest the union’s chargeability determinations, but the onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion.8 See, e.g., Lehnert, 500 U. S., at 513; Jib- son v. Michigan Ed. Assn., 30 F.3d 723, 730 (CA6 1994). This is already a significant burden for employees to bear simply to avoid having their money taken to subsidize speech with which they disagree, and the burden would become insupportable if unions could impose a new as- sessment at any time, with a new chargeability determi- nation to be challenged. 2 The SEIU argues that objecting nonmembers who were required to pay 56.35% of the special assessment, far from subsidizing the union’s political campaign, actually received a windfall. According to the union’s statistics, the actual percentage of regular dues and fees spent for chargeable purposes in 2005 turned out to be quite a bit higher (66.26%), and therefore, even if all of the money obtained through the special assessment is classified as nonchargeable, the union’s total expenditures for 2005 —————— 8 The dissent is comforted by the fact that the union “has offered to pay for neutral arbitration of such disputes before the American Arbi- tration Association,” post, at 9, but the painful burden of initiating and participating in such disputes cannot be so easily relieved. 20 KNOX v. SERVICE EMPLOYEES Opinion of the Court were at least 66.26% chargeable. See Brief for Respond- ent 5, n. 6. This argument is unpersuasive for several reasons. First, the SEIU’s understanding of the breadth of charge- able expenses is so expansive that it is hard to place much reliance on its statistics. In its brief, the SEIU argues broadly that all funds spent on “lobbying . . . the electorate” are chargeable. See id., at 51. But “lobbying . . . the electorate” is nothing but another term for support- ing political causes and candidates, and we have never held that the First Amendment permits a union to compel nonmembers to support such political activities. On the contrary, as long ago as Street, we noted the important difference between a union’s authority to engage in collec- tive bargaining and related activities on behalf of non- member employees in a bargaining unit and the union’s use of nonmembers’ money “to support candidates for public office” or “to support political causes which [they] oppos[e].” 367 U. S., at 768. The sweep of the SEIU’s argument is highlighted by its discussion of the use of fees paid by objecting nonmembers to defeat Proposition 76. According to the SEIU, these expenditures were “germane” to the implementation of its contracts because, if Proposition 76 had passed, it would have “effectively permitted the Governor to abrogate the Union’s collective bargaining agreements under certain circumstances, undermining the Union’s ability to perform its representation duty of negotiating effective collective bargaining agreements.” Brief for Respondent 49–50 (internal quotation marks omitted). If we were to accept this broad definition of germane- ness, it would effectively eviscerate the limitation on the use of compulsory fees to support unions’ controversial political activities. Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a Cite as: 567 U. S. ____ (2012) 21 Opinion of the Court result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of “germaneness” were as broad as the SEIU advocates, public-sector employees who do not endorse the unions’ goals would be essentially unpro- tected against being compelled to subsidize political and ideological activities to which they object. Second, even if the SEIU’s statistics are accurate, it does not follow that it was proper for the union to charge object- ing nonmembers 56.35%—or any other particular per- centage—of the special assessment. Unless it is possible to determine in advance with some degree of accuracy the percentage of union funds that will be used during an upcoming year for chargeable purposes—and the SEIU argues that this is not possible—there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little. Which side should bear this risk? The answer is obvious: the side whose constitutional rights are not at stake. “Given the existence of acceptable alternatives, [a] union cannot be allowed to commit dis- senters’ funds to improper uses even temporarily.” Ellis, 466 U. S., at 444. Thus, if unconsenting nonmembers pay too much, their First Amendment rights are infringed. On the other hand, if unconsenting nonmembers pay less than their proportionate share, no constitutional right of the union is violated because the union has no constitutional right to receive any payment from these employees. See Davenport, 551 U. S., at 185. The union has simply lost for a few months the “extraordinary” benefit of being em- powered to compel nonmembers to pay for services that they may not want and in any event have not agreed to fund. As we have noted, by allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out 22 KNOX v. SERVICE EMPLOYEES Opinion of the Court rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of nonmembers. In the new situation presented here, we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech— should prevail. Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” United Foods, 533 U. S., at 411. Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirma- tive consent.9 —————— 9 Contrary to JUSTICE SOTOMAYOR’s suggestion, our holding does not venture beyond the scope of the questions on which we granted review or the scope of the parties’ dispute. The second question on which we granted review broadly asks us to determine the circumstances under which a State may deduct from the pay of nonunion employees money that is used by a union for general electioneering. See Pet. for Cert. (i) (“May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?”). Our holding—that this may be done only when the em- ployee affirmatively consents—falls within that question. Our holding also addresses the primary remaining dispute between the parties, namely, the particular procedures that must be followed on Cite as: 567 U. S. ____ (2012) 23 Opinion of the Court * * * The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— remand in order to provide adequate assurance that members of the class are not compelled to subsidize nonchargeable activities to which they object. See supra, at 7–8. Petitioners argue strenuously that these procedures must be narrowly tailored to minimize intrusion on their free-speech rights. See Brief for Petitioners 11–17. We see no sensible way to address this dispute without confronting the question whether, in the particular context present here, an opt-out regime suffices. JUSTICE SOTOMAYOR would apparently have us proceed on the as- sumption that an opt-out regime is permitted. She would then have us decide what sort of opt-out procedures would be sufficient if such a regime were allowed at all. But that is a question that simply cannot be answered. It would be like asking what sort of procedural require- ments would be required if the government set out to do something else that the First Amendment flatly prohibits—for example, requiring prepublication approval of newspapers. There is also no merit in JUSTICE SOTOMAYOR’s and JUSTICE BREYER’s comments about prior precedent. This case concerns the procedures that must be followed when a public-sector union announces a special assessment or mid-year dues increase. No prior decision of this Court has addressed that question, and Hudson says not one word on the subject. Cite as: 567 U. S. ____ (2012) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 10–1121 _________________ DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 1000 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 21, 2012] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the judgment.

In this case, we decide whether the First Amendment allows a public-sector union to require objecting nonmem- bers to pay a special fee for the purpose of financing the union’s political and ideological I A Under California law, public-sector employees in a bargaining unit may decide by majority vote to create an “agency shop” arrangement under which all the employees are represented by a union selected by the majority. Cal. Govt. Code Ann. (West 2010). While employees in the unit are not required to join the union, they must nevertheless pay the union an annual fee to cover the cost of union services related to collective bargaining (so-called chargeable expenses). See ; Machinists v. 367 U.S. 740, 760 (1961). Our prior cases have recognized that such arrangements represent an “impingement” on the First Amendment rights of 2 KNOX v. SERVICE EMPLOYEES Opinion of the Court 307, n. 20 (1986). See also (“[A]gency-shop arrange- ments in the public sector raise First Amendment con- cerns because they force individuals to contribute money to unions as a condition of government employment”); (union shop presents First Amend- ment “questions of the utmost gravity”). Thus, in Abood v. Detroit Bd. of Ed., we held that a public-sector union, while permitted to bill nonmembers for chargeable expenses, may not require nonmembers to fund its political and ideological projects. And in we identified procedural requirements that a union must meet in order to collect fees from nonmembers without violating their –311. The First Amendment, we held, does not permit a public-sector union to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining. In the interest of administrative convenience, however, we concluded that a union “cannot be faulted” for calculating the fee that nonmembers must pay “on the basis of its expenses during the preceding year.” concerned a union’s regular annual fees. The present case, by contrast, concerns the First Amendment requirements applicable to a special assessment or dues increase that is levied to meet expenses that were not disclosed when the amount of the regular assessment was set. B In June 2005, respondent, the Service Employees Inter- national Union, Local 1000 (SEIU), sent out its regular notice informing employees what the agency fee would be for the year ahead. The notice set monthly dues at 1% of an employee’s gross monthly salary but capped Cite as: 567 U. S. (2012) 3 Opinion of the Court monthly dues at $45. Based on the most recently audited year, the SEIU estimated that 56.35% of its total expendi- tures in the coming year would be dedicated to chargeable collective-bargaining Thus, if a nonunion em- ployee objected within 30 days to payment of the full amount of union dues, the objecting employee was re- quired to pay only 56.35% of total dues. The SEIU’s notice also included a feature that was not present in : The notice stated that the agency fee was subject to in- crease at any time without further notice. During this time, the citizens of the State of California were engaged in a wide-ranging political debate regarding state budget deficits, and in particular the budget conse- quences of growing compensation for public employees backed by powerful public-sector unions. On June 13, 2005, Governor Arnold Schwarzenegger called for a special election to be held in November 2005, where voters would consider various ballot propositions aimed at state-level structural reforms. Two of the most controversial issues on the ballot were Propositions 75 and 76. Proposition 75 would have required unions to obtain employees’ affirma- tive consent before charging them fees to be used for polit- ical purposes. Proposition 76 would have limited state spending and would have given the Governor the ability under some circumstances to reduce state appropriations for public-employee compensation. The SEIU joined a coalition of public-sector unions in vigorously opposing these measures. Calling itself the “Alliance for a Better California,” the group would eventually raise “more than $10 million, with almost all of it coming from public em- ployee unions, including $2.75 million from state worker unions, $4.7 million from the California Teachers Associa- tion, and $700,000 from school workers unions.”1 —————— 1 Marinucci & Wildermuth, Schwarzenegger Adds Prop. 75 to His Agenda, San Francisco Chronicle, Sept. 18, 2005, p. A–17. 4 KNOX v. SERVICE EMPLOYEES Opinion of the Court On July 30, shortly after the end of the 30-day objection period for the June notice, the SEIU proposed a temporary 25% increase in employee fees, which it billed as an “Emergency Temporary Assessment to Build a Po- litical Fight-Back Fund.” App. 25. The proposal stated that the money was needed to achieve the union’s political objectives, both in the special November 2005 election and in the November 2006 election. According to the proposal, money in the Fight-Back Fund would be used “for a broad range of political expenses, including television and radio advertising, direct mail, voter regis- tration, voter education, and get out the vote activities in our work sites and in our communities across California.” The proposal specifically stated that “[t]he Fund will not be used for regular costs of the union—such as office rent, staff salaries or routine equipment replacement, etc.” It noted that “all other public worker unions are in the process of raising the extraordinary funds needed to defeat the Governor.” And it concluded: “Each of us must do our part to turn back these initiatives which would allow the Governor to destroy our wages and bene- fits and even our jobs, and threaten the well-being of all Californians.” On August 27, the SEIU’s General Council voted to implement the proposal. On August 31, the SEIU sent out a letter addressed to “Local 1000 Members and Fair Share Fee Payers,” an- nouncing that, for a limited period, their fees would be raised to 1.25% of gross monthly salary and the $45-per- month cap on regular dues would not apply. The letter explained that the union would use the fund to “defeat Proposition 76 and Proposition 75 on November 8,” and to “defeat another attack on [its] pension plan” in June 2006. The letter also informed employees that, in the following year, the money would help “to elect a governor and a legislature who sup public employees and the services [they] provide.” Cite as: 567 U. S. (2012) 5 Opinion of the Court After receiving this letter, one of the plaintiffs in this case called the SEIU’s offices to complain that the union was levying the special assessment for political purposes without giving employees a fair opunity to object. An SEIU area manager responded that “even if [the em- ployee] objected to the payment of the full agency fee, there was nothing he could do about the September increase for the Assessment.” Knox v. Westly, No. 2:05–cv–02198, 2008 WL 850128, *3 “She also stated that ‘we are in the fight of our lives,’ that the Assessment was needed, and that there was nothing that could be done to stop the Union’s expenditure of that Assessment for political purposes.” As a consolation, however, those employees who had filed timely objections after the regular June notice were required to pay only 56.35% of the temporary increase. Petitioners filed this class-action suit on behalf of 28,000 nonunion employees who were forced to contribute money to the Political Fight-Back Fund. Some of the class mem- bers had filed timely objections after receiving the regular notice in June, and others had not. Those who had objected argued that it was wrong to require them to pay 56.35% of the temporary assessment, which had been billed as intended for use in making political expenditures that they found objectionable. Those who had not objected after receiving the June notice contended that they should have received a new opunity to object when the SEIU levied the special assessment for its Politi- cal Fight-Back Fund. The District Court granted summary judgment for the petitioners, finding that the union “fully intended to use the 12 million additional dollars it anticipated to raise for political purposes.” “Even if every cent of the assessment was not intended to be used for entirely political purposes,” the court stated, “it is clear that the Union’s intent was to depart drastically from its 6 KNOX v. SERVICE EMPLOYEES Opinion of the Court typical spending regime and to focus on activities that were political or ideological in nature.” In light of this fact, the court held that it would be inappropriate for the union to rely on previous annual expenditures to estimate that 56.35% of the new fee would go toward chargeable expenses. The court ordered the SEIU to send out a new notice giving all class members 45 days to object and to provide those who objected with a full refund of their contributions to the Political Fight-Back Fund. at A divided panel of the Ninth Circuit reversed. Knox v. California State Employees Assn., Local 1000, 628 F. 3d 1115 (2010). According to the panel majority, prescribed the use of a balancing – 1120. The majority therefore inquired whether the proce- dure that the SEIU employed reasonably accommodated the interests of the union, the employer, and nonmember employees. at 1120–1123. Judge Wallace dissented, arguing that the majority had misinterpreted and sanctioned the abridgment of the First Amendment rights of –1139. We granted certiorari. 564 U. S. (2011). II The SEIU argues that we should dismiss this case as moot. In opposing the petition for certiorari, the SEIU defended the decision below on the merits. After certiorari was granted, however, the union sent out a notice offering a full refund to all class members, and the union then promptly moved for dismissal of the case on the ground of mootness. Such postcertiorari maneuvers designed to insulate a decision from review by this Court must be viewed with a critical eye. See City News & Novelty, Inc. v. Waukesha, The vol- untary cessation of challenged conduct does not ordinar- ily render a case moot because a dismissal for mootness Cite as: 567 U. S. (2012) 7 Opinion of the Court would permit a resumption of the challenged conduct as soon as the case is dismissed. See City of Mesquite v. Aladdin’s Castle, Inc., And here, since the union continues to defend the legality of the Political Fight-Back fee, it is not clear why the union would necessarily refrain from collecting similar fees in the future. The union argues that concerns about voluntary cessa- tion are inapplicable in this case because petitioners do not seek any prospective relief. See Motion to Dismiss as Moot 11–12. But even if that is so, the union’s mootness argument fails because there is still a live controversy as to the adequacy of the SEIU’s refund notice. A case be- comes moot only when it is impossible for a court to grant “ ‘ “any effectual relief whatever” to the prevailing party.’ ” (quoting Church of Scientology of 12 (1992), in turn quoting 653 (1895)). “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” v. Railway Clerks, 466 U.S. 435, 442 The District Court ordered the SEIU to send out a “proper” notice giving employees an adequate opunity to receive a full refund. Petitioners argue that the notice that the SEIU sent was improper because it includes a host of “conditions, caveats, and confusions as unnecessary complications aimed at reduc- ing the number of class members who claim a refund.” Brief for Petitioners in Opposition to Motion to Dismiss 19. In particular, petitioners allege that the union has refused to accept refund requests by fax or e-mail and has made refunds conditional upon the provision of an original signature and a Social Security number. at 18–19. As this dispute illustrates, the nature of the notice may affect how many employees who object to the union’s special 8 KNOX v. SERVICE EMPLOYEES Opinion of the Court assessment will be able to get their money back. The union is not entitled to dictate unilaterally the manner in which it advertises the availability of the refund. For this reason, we conclude that a live controversy remains, and we proceed to the merits. III A Our cases have often noted the close connection between our Nation’s commitment to self-government and the rights protected by the First Amendment. See, e.g., Brown v. Hartlage, (“At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed”); 93, n. 127 (1976) (per curiam) (“[T]he central purpose of the Speech and Press Clauses was to assure a society in which ‘uninhibited, robust, and wide-open’ public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish”); 5 (“Maintenance of the opunity for free political discus- sion is a basic tenet of our constitutional democracy”); (Brandeis, J., concurring); (Harlan, J., dissenting). The First Amendment creates “an open marketplace” in which differing ideas about political, economic, and social issues can compete freely for public acceptance without improper government interference. New York State Bd. of 5 U.S. 196, See also Hustler Magazine, ; The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of Cite as: 567 U. S. (2012) 9 Opinion of the Court ideas that it approves. See R. A. V. v. St. Paul, 505 U.S. 377, 382 (1992); 447– 448 (1969) (per curiam); West Virginia Bd. of ; Wooley v. Maynard, 430 U.S. 705, 713–715 ; (The First Amendment protects “the decision of both what to say and what not to say” (emphasis deleted)). And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed. See (“Freedom of association plainly presupposes a freedom not to associate”); Closely related to compelled speech and compelled association is compelled funding of the speech of other private speakers or groups. See Abood, 431 U. S., at 222–223. In United States v. United Inc., 533 U.S. 405 we considered the constitutionality of a state scheme that compelled such funding. The subject of the speech at issue—promoting the sale of mushrooms—was not one that is likely to stir the passions of many, but the mundane commercial nature of that speech only high- lights the imance of our analysis and our holding. The federal Mushroom Promotion, Research, and Con- sumer Information Act required that fresh mushroom handlers pay assessments used primarily to fund adver- tisements promoting mushroom sales. A large producer objected to subsidizing these generic ads, and even though we applied the less demanding standard used in prior cases to judge laws affecting commercial speech, we held that the challenged scheme violated the First Amendment. We made it clear that compulsory subsidies for private speech are subject to exacting First Amendment scrutiny and cannot be sustained unless two criteria are met. First, there must be a comprehensive regulatory scheme 10 KNOX v. SERVICE EMPLOYEES Opinion of the Court involving a “mandated association” among those who are required to pay the subsidy. Such situations are exceedingly rare because, as we have stated elsewhere, mandatory associations are permissible only when they serve a “compelling state interes[t] that cannot be achieved through means significantly less restrictive of associational freedoms.” at Second, even in the rare case where a mandatory association can be justified, compulsory fees can be levied only insofar as they are a “necessary incident” of the “larger regulatory purpose which justified the required association.” United B When a State establishes an “agency shop” that ex- acts compulsory union fees as a condition of public employ- ment, “[t]he dissenting employee is forced to sup financially an organization with whose principles and demands he may disagree.” Because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, see Tr. of Oral Arg. 48–49, the compulsory fees constitute a form of compelled speech and association that imposes a “significant impingement on First Amend- ment ” Our cases to date have tolerated this “impingement,” and we do not revisit today whether the Court’s former cases have given adequate recognition to the critical First Amendment rights at stake. “The primary purpose” of permitting unions to collect fees from nonmembers, we have said, is “to prevent non- members from free-riding on the union’s efforts, sharing the employment benefits obtained by the union’s collective bargaining without sharing the costs incurred.” Daven- 5 U. S., at Such free-rider arguments, however, are generally insufficient to overcome First Amend- Cite as: 567 U. S. (2012) 11 Opinion of the Court ment objections. Consider the following examples: “If a community association engages in a clean-up campaign or opposes encroachments by industrial de- velopment, no one suggests that all residents or prop- erty owners who benefit be required to contribute. If a parent-teacher association raises money for the school library, assessments are not levied on all par- ents. If an association of university professors has as a major function bringing pressure on universities to observe standards of tenure and academic freedom, most professors would consider it an outrage to be re- quired to join. If a medical association lobbies against regulation of fees, not all doctors who share in the benefits share in the costs.”2 Acceptance of the free-rider argument as a justification for compelling nonmembers to pay a ion of union dues represents something of an anomaly—one that we have found to be justified by the interest in furthering “labor peace.” But it is an anomaly nevertheless. Similarly, requiring objecting nonmembers to opt out of paying the nonchargeable ion of union dues—as opposed to exempting them from making such payments unless they opt in—represents a remarkable boon for unions. Courts “do not presume acquiescence in the loss of fundamental ” College Savings 7 U.S. 666, (1999) (internal quotation marks omitted). Once it is recognized, as our cases have, that a nonmember cannot be forced to fund a union’s political or ideological activi- ties, what is the justification for putting the burden on the nonmember to opt out of making such a payment? —————— 2 Summers, Book Review, Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory, 16 Comparative Labor L. J. 262, 268 (1995). 12 KNOX v. SERVICE EMPLOYEES Opinion of the Court Shouldn’t the default rule com with the probable preferences of most nonmembers? And isn’t it likely that most employees who choose not to join the union that represents their bargaining unit prefer not to pay the full amount of union dues? An opt-out system creates a risk that the fees paid by nonmembers will be used to further political and ideological ends with which they do not agree. But a “[u]nion should not be permitted to exact a service fee from nonmembers without first establishing a procedure which will avoid the risk that their funds will be used, even temporarily, to finance ideological activities unrelated to collective bargaining.” (internal quotation marks omitted). Although the difference between opt-out and opt-in schemes is imant, our prior cases have given sur- prisingly little attention to this distinction. Indeed, ac- ceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles. The trail begins with dicta in where we consid- ered whether a federal collective-bargaining statute au- thorized a union to impose compulsory fees for political The plaintiffs were employ- ees who had affirmatively objected to the way their fees were being used, and so we took that feature of the case for granted. We held that the statute did not authorize the use of the objecting employees’ fees for ideological purposes, and we stated in passing that “dissent is not to be presumed—it must affirmatively be made known to the union by the dissenting employee.” In making that offhand remark, we did not pause to consider the broader constitutional implications of an affirmative opt-out requirement. Nor did we explore the extent of First Amendment protection for employees who might not qual- ify as active “dissenters” but who would nonetheless prefer to keep their own money rather than subsidizing by de- Cite as: 567 U. S. (2012) 13 Opinion of the Court fault the political agenda of a state-favored union. In later cases such as Abood and we assumed without any focused analysis that the dicta from had authorized the opt-out requirement as a constitutional matter. Thus in we did not take issue with the union’s practice of giving employees annual notice and an opunity to object to expected political expenditures. At the same time, however, we made it clear that the procedures used by a union to collect money from non- members must satisfy a high standard. Contrary to the view of the Ninth Circuit panel major- ity, we did not call for a balancing of the “right” of the union to collect an agency fee against the First Amend- ment rights of –1120. As we noted in Daven, “unions have no constitutional entitlement to the fees of nonmember-employees.” 5 U. S., at 185. A union’s “collection of fees from nonmem- bers is authorized by an act of legislative grace,” 628 F. 3d, at 1126 (Wallace, J., dissenting)—one that we have termed “unusual” and “extraordinary,” Daven, at 184, 187. Far from calling for a balancing of rights or interests, made it clear that any procedure for exacting fees from unwilling contributors must be “care- fully tailored to minimize the infringement” of free speech And to underscore the meaning of this careful tailoring, we followed that statement with a citation to cases holding that measures burdening the freedom of speech or association must serve a “compelling interest” and must not be significantly broader than nec- essary to serve that interest.3 —————— 3 The specific citation was as follows: “See [, ] (Infringements on freedom of association ‘may be justified by regu- lations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means signifi- cantly less restrictive of associational freedoms’); Elrod v. Burns, 427 14 KNOX v. SERVICE EMPLOYEES Opinion of the Court IV By authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collec- tion of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. The SEIU, how- ever, asks us to go farther. It asks us to approve a proce- dure under which (a) a special assessment billed for use in electoral campaigns was assessed without providing a new opunity for nonmembers to decide whether they wished to contribute to this effort and (b) nonmembers who previously opted out were nevertheless required to pay more than half of the special assessment even though the union had said that the purpose of the fund was to mount a political campaign and that it would not be used for ordinary union expenses. This aggressive use of power by the SEIU to collect fees from nonmembers is indefensible. A First, we see no justification for the union’s failure to provide a fresh notice. rests on the prin- ciple that nonmembers should not be required to fund a union’s political and ideological projects unless they choose to do so after having “a fair opunity” to assess the im- pact of paying for nonchargeable union 475 U. S., at 303. Giving employees only one opunity per year to make this choice is tolerable if employees are able at the time in question to make an informed choice. But —————— U. S. 347, 363 (1976) (government means must be ‘least restrictive of freedom of belief and association’); 414 U.S. 58–59 (1973) (‘[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty’); (‘Precision of reg- ulation must be the touchstone’ in the First Amendment context).” n. 11. Cite as: 567 U. S. (2012) 15 Opinion of the Court a nonmember cannot make an informed choice about a special assessment or dues increase that is unknown when the annual notice is sent. When a union levies a special assessment or raises dues as a result of unexpected devel- opments, the factors influencing a nonmember’s choice may change. In particular, a nonmember may take special exception to the uses for which the additional funds are sought.4 The present case provides a striking example. The special assessment in this case was billed for use in a broad electoral campaign designed to defeat two imant and controversial ballot initiatives and to elect sympa- thetic candidates in the 2006 gubernatorial and legislative elections. There were undoubtedly nonmembers who, for one reason or another, chose not to opt out or neglected to do so when the standard notice was sent but who took strong exception to the SEIU’s political objectives and did not want to subsidize those efforts. These nonmem- bers might have favored one or both of the ballot initia- tives; they might have wished to sup the reelection of the incumbent Governor; or they might not have wanted to delegate to the union the authority to decide which candidates in the 2006 elections would receive a share of their money. The effect on nonmembers was particularly striking with respect to the union’s campaign against Proposition 75 because that initiative would have bolstered nonmem- ber If Proposition 75 had passed, nonmembers would have been exempt from paying for the SEIU’s ex- tensive political projects unless they affirmatively con- —————— 4 The dissent suggests that the union gave fair notice because it an- nounced at the beginning of the year that “ ‘[d]ues are subject to change without further notice to fee payers.’ ” Post, at 12 (opinion of BREYER, J.). But a union cannot define the scope of its own notice obligations simply by promulgating a clause giving itself the power to increase fees at any time for any purpose without further notice. 16 KNOX v. SERVICE EMPLOYEES Opinion of the Court sented. Thus, the effect of the SEIU’s procedure was to force many nonmembers to subsidize a political effort designed to restrict their own As held, procedures for collecting fees from nonmembers must be carefully tailored to minimize im- pingement on First Amendment rights, and the procedure used in this case cannot possibly be considered to have met that standard. After the dues increase was adopted, the SEIU wrote to all employees in the relevant bargain- ing units to inform them of this development. It would have been a relatively simple matter for the union to cast this letter in the form of a new notice, so that nonmembers could decide whether they wanted to pay for the union’s electoral project. The SEIU argues that we should not be troubled by its failure to provide a new notice because nonmembers who objected to the special assessment but were nonetheless required to pay it would have been given the chance to recover the funds in question by opting out when the next annual notice was sent. If the special assessment was used entirely or in part for nonchargeable purposes, they suggest, the percentage of the union’s annual expenditures for chargeable purposes would decrease, and therefore the amount of the dues payable by objecting nonmembers the following year would also decrease. This decrease, how- ever, would not fully recompense nonmembers who did not opt out after receiving the regular notice but would have opted out if they had been permitted to do so when the special assessment was announced.5 And in any event, even a full refund would not undo the violation of First Amendment As we have recognized, the First —————— 5 These nonmembers, after paying the full amount of the special as- sessment, would be required during the subsequent year to pay at least as much as those nonmembers who did opt out when they received the initial notice. Cite as: 567 U. S. (2012) 17 Opinion of the Court Amendment does not permit a union to extract a loan from unwilling nonmembers even if the money is later paid back in full. See ; 466 U. S., at 444. Here, for nonmembers who disagreed with the SEIU’s electoral objectives, a refund provided after the union’s objectives had already been achieved would be cold comfort.6 To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out. Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all. Even if this burden can be justified during the collection of regular dues on an annual basis, there is no way to justify the additional burden of imposing yet another opt-out requirement to collect special fees whenever the union desires. B 1 The SEIU’s treatment of nonmembers who opted out —————— 6 JUSTICE SOTOMAYOR contends that a new notice should be required only when a special assessment is imposed for political pur- poses. Post, at 2 (opinion concurring in judgment). But as even the dissent acknowledges, post, at 7, such a rule would be unworkable. First, our cases have recognized that a union’s money is fungible, so even if the new fee were spent entirely for nonpolitical activities, it would free up other funds to be spent for political purposes. See Retail (noting that particu- lar fee earmarks are “of bookkeeping significance only rather than a matter of real substance”). And second, unless we can rely on unions to advertise the true purpose behind every special fee, it is not clear how a court could make a timely determination of whether each new fee is political in nature. It would be practically impossible to require the parties to litigate the purpose of every fee merely to determine whether notice is required. 18 KNOX v. SERVICE EMPLOYEES Opinion of the Court when the initial notice was sent also ran afoul of the First Amendment. The SEIU required these employ- ees to pay 56.35% of the special assessment, just as they had been required to pay 56.35% of the regular annual dues. But the union proclaimed that the special assess- ment would be used to sup an electoral campaign and would not be used for ordinary union expenses. Accord- ingly, there is no reason to suppose that 56.35% of the new assessment was used for properly chargeable expenses. On the contrary, if the union is to be taken at its word, virtually all of the money was slated for nonchargeable uses. The procedure accepted in is designed for use when a union sends out its regular annual dues notices. The procedure is predicated on the assumption that a union’s allocation of funds for chargeable and noncharge- able purposes is not likely to vary greatly from one year to the next.7 No such assumption is reasonable, however, when a union levies a special assessment or raises dues as a result of events that were not anticipated or disclosed at the time when a yearly notice was sent. Accord- ingly, use of figures based on an audit of the union’s oper- ations during an entire previous year makes no sense. Nor would it be feasible to devise a new breakdown of chargeable and nonchargeable expenses for the special assessment. Determining that breakdown is problematic enough when it is done on a regular annual basis because auditors typically do not make a legal determination as to whether particular expenditures are chargeable. Instead, —————— 7 The SEIU contends that “[s]ignificant fluctuations in the chargeable and nonchargeable proions of a union’s spending are inevitable,” Brief for Respondent 13, and the dissent appears to agree, post, at 10. But if the Court had proceeded on this assumption it is doubt- ful that it would have found it acceptable for a union to rely solely on the breakdown in the most recent year rather than computing the average breakdown over a longer period. Cite as: 567 U. S. (2012) 19 Opinion of the Court the auditors take the union’s characterization for granted and perform the simple accounting function of “ensur[ing] that the expenditures which the union claims it made for certain expenses were actually made for those expenses.” 340 (CA2 1987). Thus, if a union takes a very broad view of what is chargeable—if, for example, it believes that suping sympathetic political candidates is chargeable and bases its classification on that view—the auditors will classify these political expenditures as chargeable. Object- ing employees may then contest the union’s chargeability determinations, but the onus is on the employees to come up with the resources to mount the legal challenge in a timely fashion.8 See, e.g., 500 U. S., at 3; Jib- This is already a significant burden for employees to bear simply to avoid having their money taken to subsidize speech with which they disagree, and the burden would become insupable if unions could impose a new as- sessment at any time, with a new chargeability determi- nation to be challenged. 2 The SEIU argues that objecting nonmembers who were required to pay 56.35% of the special assessment, far from subsidizing the union’s political campaign, actually received a windfall. According to the union’s statistics, the actual percentage of regular dues and fees spent for chargeable purposes in 2005 turned out to be quite a bit higher (66.26%), and therefore, even if all of the money obtained through the special assessment is classified as nonchargeable, the union’s total expenditures for 2005 —————— 8 The dissent is comforted by the fact that the union “has offered to pay for neutral arbitration of such disputes before the American Arbi- tration Association,” post, at 9, but the painful burden of initiating and participating in such disputes cannot be so easily relieved. 20 KNOX v. SERVICE EMPLOYEES Opinion of the Court were at least 66.26% chargeable. See Brief for Respond- ent 5, n. 6. This argument is unpersuasive for several reasons. First, the SEIU’s understanding of the breadth of charge- able expenses is so expansive that it is hard to place much reliance on its statistics. In its brief, the SEIU argues broadly that all funds spent on “lobbying the electorate” are chargeable. See at But “lobbying the electorate” is nothing but another term for sup- ing political causes and candidates, and we have never held that the First Amendment permits a union to compel nonmembers to sup such political On the contrary, as long ago as we noted the imant difference between a union’s authority to engage in collec- tive bargaining and related activities on behalf of non- member employees in a bargaining unit and the union’s use of nonmembers’ money “to sup candidates for public office” or “to sup political causes which [they] oppos[e].” The sweep of the SEIU’s argument is highlighted by its discussion of the use of fees paid by objecting nonmembers to defeat Proposition 76. According to the SEIU, these expenditures were “germane” to the implementation of its contracts because, if Proposition 76 had passed, it would have “effectively permitted the Governor to abrogate the Union’s collective bargaining agreements under certain circumstances, undermining the Union’s ability to perform its representation duty of negotiating effective collective bargaining agreements.” Brief for Respondent 49–50 (internal quotation marks omitted). If we were to accept this broad definition of germane- ness, it would effectively eviscerate the limitation on the use of compulsory fees to sup unions’ controversial political Public-employee salaries, pensions, and other benefits constitute a substantial percentage of the budgets of many States and their subdivisions. As a Cite as: 567 U. S. (2012) 21 Opinion of the Court result, a broad array of ballot questions and campaigns for public office may be said to have an effect on present and future contracts between public-sector workers and their employers. If the concept of “germaneness” were as broad as the SEIU advocates, public-sector employees who do not endorse the unions’ goals would be essentially unpro- tected against being compelled to subsidize political and ideological activities to which they object. Second, even if the SEIU’s statistics are accurate, it does not follow that it was proper for the union to charge object- ing nonmembers 56.35%—or any other particular per- centage—of the special assessment. Unless it is possible to determine in advance with some degree of accuracy the percentage of union funds that will be used during an upcoming year for chargeable purposes—and the SEIU argues that this is not possible—there is at least a risk that, at the end of the year, unconsenting nonmembers will have paid either too much or too little. Which side should bear this risk? The answer is obvious: the side whose constitutional rights are not at stake. “Given the existence of acceptable alternatives, [a] union cannot be allowed to commit dis- senters’ funds to improper uses even temporarily.” Thus, if unconsenting nonmembers pay too much, their First Amendment rights are infringed. On the other hand, if unconsenting nonmembers pay less than their proionate share, no constitutional right of the union is violated because the union has no constitutional right to receive any payment from these employees. See Daven, 5 U. S., at 185. The union has simply lost for a few months the “extraordinary” benefit of being em- powered to compel nonmembers to pay for services that they may not want and in any event have not agreed to fund. As we have noted, by allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out 22 KNOX v. SERVICE EMPLOYEES Opinion of the Court rather than opt-in schemes when annual dues are billed, our cases have substantially impinged upon the First Amendment rights of In the new situation presented here, we see no justification for any further impingement. The general rule—individuals should not be compelled to subsidize private groups or private speech— should prevail. Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. (2010). But employees who choose not to join a union have the same The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” United Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh notice and may not exact any funds from nonmembers without their affirma- tive consent.9 —————— 9 Contrary to JUSTICE SOTOMAYOR’s suggestion, our holding does not venture beyond the scope of the questions on which we granted review or the scope of the parties’ dispute. The second question on which we granted review broadly asks us to determine the circumstances under which a State may deduct from the pay of nonunion employees money that is used by a union for general electioneering. See Pet. for Cert. (i) (“May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?”). Our holding—that this may be done only when the em- ployee affirmatively consents—falls within that question. Our holding also addresses the primary remaining dispute between the parties, namely, the particular procedures that must be followed on Cite as: 567 U. S. (2012) 23 Opinion of the Court * * * The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— remand in order to provide adequate assurance that members of the class are not compelled to subsidize nonchargeable activities to which they object. See at 7–8. Petitioners argue strenuously that these procedures must be narrowly tailored to minimize intrusion on their free-speech See Brief for Petitioners 11–17. We see no sensible way to address this dispute without confronting the question whether, in the particular context present here, an opt-out regime suffices. JUSTICE SOTOMAYOR would apparently have us proceed on the as- sumption that an opt-out regime is permitted. She would then have us decide what sort of opt-out procedures would be sufficient if such a regime were allowed at all. But that is a question that simply cannot be answered. It would be like asking what sort of procedural require- ments would be required if the government set out to do something else that the First Amendment flatly prohibits—for example, requiring prepublication approval of newspapers. There is also no merit in JUSTICE SOTOMAYOR’s and JUSTICE BREYER’s comments about prior precedent. This case concerns the procedures that must be followed when a public-sector union announces a special assessment or mid-year dues increase. No prior decision of this Court has addressed that question, and says not one word on the subject. Cite as: 567 U. S. (2012) 1 SOTOMAYOR, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 10–1121 DIANNE KNOX, ET AL., PETITIONERS v. SERVICE EM- PLOYEES INTERNATIONAL UNION, LOCAL 1000 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 21, 2012] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the judgment.

Justice Sotomayor

concurring

Knox v. Service Employees

2012-06-21

https://www.courtlistener.com/opinion/802771/knox-v-service-employees/

https://www.courtlistener.com/api/rest/v3/clusters/802771/

2011-070

When a public-sector union imposes a special assess- ment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide non- members an opportunity to opt out of the contribution of funds. I therefore concur in the Court’s judgment. I concur only in the judgment, however, because I can- not agree with the majority’s decision to address unneces- sarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers. I The Political Fight-Back Fund was to be used by Service Employees International Union, Local 1000 (SEIU), “spe- cifically in the political arenas of California” to defeat perceived antiunion initiatives and to elect a sympathetic Governor and legislature. App. 25; see also id., at 31. As the majority explains, such political efforts are not “ger- mane” to the union’s function as a bargaining represent- ative, and accordingly are not chargeable to objecting nonmembers. See Lehnert v. Ferris Faculty Assn., 500 U.S. 2 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment 507, 519 (1991); see also Locke v. Karass, 555 U.S. 207, 211 (2009) (“[N]onchargeable union activities [include] political, public relations, or lobbying activities”). While the union is free to pursue its ideological goals in the political arena, it may not subsidize its efforts with object- ing nonmembers’ funds, lest the objector be used as “ ‘an in- strument for fostering public adherence to an ideological point of view he finds unacceptable.’ ” Lehnert, 500 U. S., at 522 (plurality opinion) (quoting Wooley v. Maynard, 430 U.S. 705, 715 (1977)). Accordingly, when a union levies a special assessment or dues increase to fund political activities, the union may not collect funds from nonmembers who earlier had ob- jected to the payment of nonchargeable expenses, and may not collect funds from other nonmembers without provid- ing a new Hudson notice and opportunity to opt out. See Teachers v. Hudson, 475 U.S. 292 (1986). Because SEIU failed to follow these procedures, it did not satisfy its constitutional obligations. That holding should end this case; it is all petitioners asked this Court to decide.1 II The majority agrees that SEIU’s actions were at odds with the First Amendment. Yet it proceeds, quite un- necessarily, to reach significant constitutional issues not contained in the questions presented, briefed, or argued. Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system —————— 1 See Pet. for Cert. (i) (questions presented); Brief for Petitioners (i) (same); id., at 39 (“The Court should hold that . . . when a union im- poses a forced-fee increase primarily or solely for political purposes be- tween notices, it may not collect the increase from nonmembers who have already objected, and it must not collect the increase from other nonmembers until it has ascertained their wishes by providing them with a new notice about the increase’s purpose and an opportunity to opt out”); see also App. 18–19 (complaint). Cite as: 567 U. S. ____ (2012) 3 SOTOMAYOR, J., concurring in judgment of fee collection comports with the Constitution. See Dav- enport v. Washington Ed. Assn., 551 U.S. 177, 181, 185 (2007); Hudson, 475 U. S., at 306, n. 16; Abood v. De- troit Bd. of Ed., 431 U.S. 209, 238 (1977); see also ante, at 12–13. They did not argue that the Constitution re- quires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect. Under this Court’s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be con- sidered by the Court.” “[W]e disregard [that rule] ‘only in the most exceptional cases,’ where reasons of urgency or economy suggest the need to address the unpresented question in the case under consideration.” Yee v. Escon- dido, 503 U.S. 519, 535 (1992) (quoting Stone v. Powell, 428 U.S. 465, 481, n. 15 (1976)). The majority does not claim any such exceptional circumstance here. Yet it reaches out to hold that “when a public-sector union imposes a special assessment or dues increase, the union must pro- vide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.” Ante, at 22 (emphasis added); see also ante, at 17 (“[T]he union should have sent out a new notice allowing non- members to opt in to the special fee rather than requiring them to opt out”). The majority thus decides, for the very first time, that the First Amendment does require an opt- in system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered. The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules. See Yee, 503 U. S., at 535. And it ignores a fundamental premise of our adversarial system: “ ‘that appellate courts 4 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions pre- sented and argued by the parties before them.’ ” NASA v. Nelson, 562 U.S. ___, ___, n. 10 (2011) (opinion for the Court by ALITO, J.) (slip op., at 11, n. 10) (quoting Car- ducci v. Regan, 714 F.2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.)); see also Jefferson v. Upton, 560 U.S. ___, ___ (SCALIA, J., joined by THOMAS, J., dissenting) (slip op., at 8) (The majority’s “refusal to abide by standard rules of appellate practice is unfair to the . . . Circuit,” which did not pass on this question, “and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the . . . question the Court decides”). The imperative of judicial restraint is at its zenith here, with respect to an issue of such constitutional magnitude, for “[i]f there is one doc- trine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudica- tion is unavoidable.” Clinton v. Jones, 520 U.S. 681, 690, n. 11 (1997) (internal quotation marks omitted).2 —————— 2 The majority contends that its holding “does not venture beyond the scope of the questions on which we granted review,” pointing to the second question presented. Ante, at 22, n. 9. The majority is mistaken. That question concerns the chargeability of political and lobbying activities under Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 522 (1991), not the procedures by which a union may collect fees. See Pet. for Cert. (i); id., at 20–27 (describing scope of second question pre- sented); id., at 23 (“There is a serious split, and confusion, among the circuits on the chargeability of union political and lobbying activities”). Indeed, it is only petitioners’ first question presented that deals with fee-collection procedures. And in that question, petitioners ask this Court to hold that SEIU may not collect its special assessment without providing a Hudson notice that offers “an opportunity to object to” the deduction of fees for the assessment. Id., at (i) (emphasis added). The phrase “opt in” appears not once in petitioners’ briefing. The majority protests that it cannot but hold that an opt-in regime is required, seeing as the opt-out regime the petitioners advocate is, in the Cite as: 567 U. S. ____ (2012) 5 SOTOMAYOR, J., concurring in judgment To make matters worse, the majority’s answer to its unasked constitutional question is not even clear. After today, must a union undertaking a special assessment or dues increase obtain affirmative consent to collect “any funds” or solely to collect funds for nonchargeable ex- penses? May a nonmember opt not to contribute to a special assessment, even if the assessment is levied to fund uncontestably chargeable activities? Does the ma- jority’s new rule allow for any distinction between non- members who had earlier objected to the payment of nonchargeable expenses and those who had not? What procedures govern this new world of fee collection? Moreover, while the majority’s novel rule is, on its face, limited to special assessments and dues increases, the majority strongly hints that this line may not long endure. The majority pronounces the Court’s explicit holding in Machinists v. Street, 367 U.S. 740, 774 (1961)—that “dissent is not to be presumed[,] it must affirmatively be made known to the union by the dissenting employee”— nothing but an “offhand remark,” made by Justices who did not “pause to consider the broader constitutional implications of an affirmative opt-out requirement,” ante, at 12. The reader is told that our precedents’ “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful applica- tion of First Amendment principles.” Ibid. And that “[b]y authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection —————— majority’s view, unconstitutional. But if the Court was dissatisfied with the scope of the questions presented here it should not have granted certiorari in this case. Or having granted it, the Court should have asked for supplemental briefing on the question whether an opt-in regime is constitutionally required. What it should not have done— cannot do under our rules—is decide that question without having provided the parties and potential amici an opportunity to weigh in with their own considered views. 6 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Ante, at 14 (emphasis added); see also ante, at 21–22 (“[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially im- pinged upon the First Amendment rights of nonmem- bers”); ante, at 11–12 (“Once it is recognized . . . that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn’t the default rule comport with the probable preferences of most nonmembers?”). To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise. It deprives the parties and potential amici of the opportunity to brief and argue the question. It deprives us of the benefit of argument that the parties, with concrete interests in the question, are surely better positioned than we to set forth. See NASA, 562 U. S., at ___, n. 10 (opinion for the Court by ALITO, J.) (slip op., at 11, n. 10) (“It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided”). Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well. Cite as: 567 U. S. ____ (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 10–1121 _________________ DIANNE KNOX, ET AL., PETITIONERS v.

When a public-sector union imposes a special assess- ment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide non- members an opportunity to opt out of the contribution of funds. I therefore concur in the Court’s judgment. I concur only in the judgment, however, because I can- not agree with the majority’s decision to address unneces- sarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers. I The Political Fight-Back Fund was to be used by Service Employees International Union, Local 1000 (SEIU), “spe- cifically in the political arenas of California” to defeat perceived antiunion initiatives and to elect a sympathetic Governor and legislature. App. 25; see also As the majority explains, such political efforts are not “ger- mane” to the union’s function as a bargaining represent- ative, and accordingly are not chargeable to objecting nonmembers. See 500 U.S. 2 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment 507, 519 (1991); see also 211 (2009) (“[N]onchargeable union activities [include] political, public relations, or lobbying activities”). While the union is free to pursue its ideological goals in the political arena, it may not subsidize its efforts with object- ing nonmembers’ funds, lest the objector be used as “ ‘an in- strument for fostering public adherence to an ideological point of view he finds unacceptable.’ ” Lehnert, 500 U. S., at (plurality opinion) ). Accordingly, when a union levies a special assessment or dues increase to fund political activities, the union may not collect funds from nonmembers who earlier had ob- jected to the payment of nonchargeable expenses, and may not collect funds from other nonmembers without provid- ing a new notice and opportunity to opt out. See Because SEIU failed to follow these procedures, it did not satisfy its constitutional obligations. That holding should end this case; it is all petitioners asked this Court to decide.1 II The majority agrees that SEIU’s actions were at odds with the First Amendment. Yet it proceeds, quite un- necessarily, to reach significant constitutional issues not contained in the questions presented, briefed, or argued. Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system —————— 1 See Pet. for Cert. (i) (questions presented); Brief for Petitioners (i) (same); (“The Court should hold that when a union im- poses a forced-fee increase primarily or solely for political purposes be- tween notices, it may not collect the increase from nonmembers who have already objected, and it must not collect the increase from other nonmembers until it has ascertained their wishes by providing them with a new notice about the increase’s purpose and an opportunity to opt out”); see also App. 18–19 (complaint). Cite as: 567 U. S. (2012) 3 SOTOMAYOR, J., concurring in judgment of fee collection comports with the Constitution. See Dav- (2007); n. 16; ; see also ante, at 12–13. They did not argue that the Constitution re- quires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect. Under this Court’s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be con- sidered by the Court.” “[W]e disregard [that rule] ‘only in the most exceptional cases,’ where reasons of urgency or economy suggest the need to address the unpresented question in the case under consideration.” ). The majority does not claim any such exceptional circumstance here. Yet it reaches out to hold that “when a public-sector union imposes a special assessment or dues increase, the union must pro- vide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.” Ante, at 22 (emphasis added); see also ante, at 17 (“[T]he union should have sent out a new notice allowing non- members to opt in to the special fee rather than requiring them to opt out”). The majority thus decides, for the very first time, that the First Amendment does require an opt- in system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered. The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules. See 503 U. S., at And it ignores a fundamental premise of our adversarial system: “ ‘that appellate courts 4 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions pre- sented and argued by the parties before them.’ ” NASA v. Nelson, 562 U.S. n. 10 (2011) (opinion for the Court by ALITO, J.) (slip op., at 11, n. 10) (opinion for the court by Scalia, J.)); see also Jefferson v. Upton, 560 U.S. (SCALIA, J., joined by THOMAS, J., dissenting) (slip op., at 8) (The majority’s “refusal to abide by standard rules of appellate practice is unfair to the Circuit,” which did not pass on this question, “and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the question the Court decides”). The imperative of judicial restraint is at its zenith here, with respect to an issue of such constitutional magnitude, for “[i]f there is one doc- trine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality unless such adjudica- tion is unavoidable.” n. 11 (1997) (internal quotation marks omitted).2 —————— 2 The majority contends that its holding “does not venture beyond the scope of the questions on which we granted review,” pointing to the second question presented. Ante, at 22, n. 9. The majority is mistaken. That question concerns the chargeability of political and lobbying activities under (1991), not the procedures by which a union may collect fees. See Pet. for Cert. (i); at 20–27 (describing scope of second question pre- sented); (“There is a serious split, and confusion, among the circuits on the chargeability of union political and lobbying activities”). Indeed, it is only petitioners’ first question presented that deals with fee-collection procedures. And in that question, petitioners ask this Court to hold that SEIU may not collect its special assessment without providing a notice that offers “an opportunity to object to” the deduction of fees for the assessment. at (i) (emphasis added). The phrase “opt in” appears not once in petitioners’ briefing. The majority protests that it cannot but hold that an opt-in regime is required, seeing as the opt-out regime the petitioners advocate is, in the Cite as: 567 U. S. (2012) 5 SOTOMAYOR, J., concurring in judgment To make matters worse, the majority’s answer to its unasked constitutional question is not even clear. After today, must a union undertaking a special assessment or dues increase obtain affirmative consent to collect “any funds” or solely to collect funds for nonchargeable ex- penses? May a nonmember opt not to contribute to a special assessment, even if the assessment is levied to fund uncontestably chargeable activities? Does the ma- jority’s new rule allow for any distinction between non- members who had earlier objected to the payment of nonchargeable expenses and those who had not? What procedures govern this new world of fee collection? Moreover, while the majority’s novel rule is, on its face, limited to special assessments and dues increases, the majority strongly hints that this line may not long endure. The majority pronounces the Court’s explicit holding in —that “dissent is not to be presumed[,] it must affirmatively be made known to the union by the dissenting employee”— nothing but an “offhand remark,” made by Justices who did not “pause to consider the broader constitutional implications of an affirmative opt-out requirement,” ante, at 12. The reader is told that our precedents’ “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful applica- tion of First Amendment principles.” And that “[b]y authorizing a union to collect fees from nonmembers and permitting the use of an opt-out system for the collection —————— majority’s view, unconstitutional. But if the Court was dissatisfied with the scope of the questions presented here it should not have granted certiorari in this case. Or having granted it, the Court should have asked for supplemental briefing on the question whether an opt-in regime is constitutionally required. What it should not have done— cannot do under our rules—is decide that question without having provided the parties and potential amici an opportunity to weigh in with their own considered views. 6 KNOX v. SERVICE EMPLOYEES SOTOMAYOR, J., concurring in judgment of fees levied to cover nonchargeable expenses, our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate.” Ante, at 14 (emphasis added); see also ante, at 21–22 (“[B]y allowing unions to collect any fees from nonmembers and by permitting unions to use opt-out rather than opt-in schemes when annual dues are billed, our cases have substantially im- pinged upon the First Amendment rights of nonmem- bers”); ante, at 11–12 (“Once it is recognized that a nonmember cannot be forced to fund a union’s political or ideological activities, what is the justification for putting the burden on the nonmember to opt out of making such a payment? Shouldn’t the default rule comport with the probable preferences of most nonmembers?”). To cast serious doubt on longstanding precedent is a step we historically take only with the greatest caution and reticence. To do so, as the majority does, on our own invitation and without adversarial presentation is both unfair and unwise. It deprives the parties and potential amici of the opportunity to brief and argue the question. It deprives us of the benefit of argument that the parties, with concrete interests in the question, are surely better positioned than we to set forth. See NASA, 562 U. S., at n. 10 (opinion for the Court by ALITO, J.) (slip op., at 11, n. 10) (“It is undesirable for us to decide a matter of this importance in a case in which we do not have the benefit of briefing by the parties and in which potential amici had little notice that the matter might be decided”). Not content with our task, prescribed by Article III, of answering constitutional questions, the majority today decides to ask them as well. Cite as: 567 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–1121 DIANNE KNOX, ET AL., PETITIONERS v.

Justice Breyer

dissenting

Knox v. Service Employees

2012-06-21

https://www.courtlistener.com/opinion/802771/knox-v-service-employees/

https://www.courtlistener.com/api/rest/v3/clusters/802771/

2011-070

In Teachers v. Hudson, 475 U.S. 292 (1986), this Court unanimously held that “the Union cannot be faulted for calculating its fee on the basis of its expenses during the preceding year.” Id., at 307, n. 18. That is precisely what the union has done in this case. I see no reason to modify Hudson’s holding as here applied. I consequently dissent. I In Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977), the Court held that nonunion public employees have a First Amendment right to prevent a union’s spending a part of their compulsory fees on contributions to political candi- dates or on “express[ions of ] political views unrelated to [the union’s] duties as exclusive bargaining representa- tive.” Id., at 234. A decade later in Hudson, the Court considered the constitutionality of procedures adopted to implement Abood. In particular, the Court considered the procedures adopted by a teachers union “to draw that necessary line and to respond to nonmembers’ objections to the manner in which it was drawn.” 475 U. S., at 294. The teachers union had calculated the fee it could charge nonmembers during a particular year on the basis of the expenditures the union actually made during the 2 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting prior year. Those nonmembers who objected to the ap- portionment, believing their fee too high, could lodge an objection with the union, proceed through arbitration, and receive a rebate if they won. The Court found this proce- dure constitutionally inadequate. It thought that (1) a rebate “does not avoid the risk that dissenters’ funds may be used temporarily for an improper purpose,” (2) the union had not provided the nonmembers in advance with “sufficient information to gauge the propriety of the un- ion’s fee,” and (3) the union did not provide objectors with “a reasonably prompt decision by an impartial deci- sionmaker.” Id., at 305–307. The Court then held that the Constitution requires that a union collecting a fee from nonmembers provide “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” Id., at 310. The Court added that it “recognize[d] that there are practical reasons why ‘[a]bsolute precision’ in the calcula- tion of the charge to nonmembers cannot be ‘expected or required.’ ” Id., at 307, n. 18 (quoting Railway Clerks v. Allen, 373 U.S. 113, 122 (1963)). It said that the union retains the burden of proving that a given expense is chargeable to nonmembers, the “nonmember’s ‘burden’ ” be- ing simply that of making “his objection known.” 475 U. S., at 306, n. 16. And it added that the union “cannot be faulted for calculating its fee on the basis of its ex- penses during the preceding year.” Id., at 307, n. 18. For the last 25 years unions and employers across the Nation have relied upon this Court’s statements in Hudson in developing administratively workable systems that (1) allow unions to pay the costs of fulfilling their representational obligations to both members and non- members alike, while (2) simultaneously protecting the Cite as: 567 U. S. ____ (2012) 3 BREYER, J., dissenting nonmembers’ constitutional right not to support “‘ideological causes not germane to [the union’s] duties as collective- bargaining agent.’ ” Id., at 294 (quoting Ellis v. Railway Clerks, 466 U.S. 435, 447 (1984)). See also Keller v. State Bar of Cal., 496 U.S. 1, 17 (1990) (explaining that Hudson “outlined a minimum set of procedures by which a union in an agency-shop relationship could meet its requirement under Abood”). The Court, in my view, should not depart, or create an exception, from Hudson’s framework here. II Because the administrative details of the fee collection process are critical, I shall begin by explaining how I un- derstand that process to work. The union here followed a basic administrative system that ensures that the fee charged to objecting nonmembers matches their pro rata share of the union’s chargeable expenditures, but it achieves that match only over a period of several years. At the end of 2004, independent auditors determined the amount of chargeable (e.g., collective-bargaining related) expenditures and the amount of nonchargeable (e.g., non- germane political) expenditures that the union ac- tually made during 2004. The union then used the resulting proportion (which was about 56% chargeable, 44% non- chargeable) as the basis for apportioning the next year’s dues. Thus in June 2005, the union sent all represented employees a Hudson notice setting forth that (roughly) 56 to 44 figure. App. 96–106. It provided time for nonmem- bers to object or to challenge the figure or underlying data. Id., at 98–104. And it then applied the resulting figure to determine the percentage of the total fee that objecting nonmembers would have to pay during the next fee-year, which ran from July 2005 to June 2006. Id., at 102. At the end of 2005, auditors again examined the union’s actual expenditures made during 2005. And the union then used those newly audited figures to determine the 4 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting chargeable percentage for the fee-year 2006–2007. Id., at 158. Since political expenditures during calendar year 2005 turned out to be lower than in 2004, the new charge- able share amounted to about 69% of the total fee bill. Ibid. Simplifying further to illustrate, I shall describe the system as (1) using audited accounts for Year One to determine the proportion of the fee that objectors must pay during Year Two, and (2) using audited accounts for Year Two to determine the proportion of the fee that ob- jectors must pay during Year Three. If Year One’s chargeable share (as applied to Year Two) turns out to be too high, Year Two’s audited accounts will reflect that fact, and the payable share for Year Three will be reduced accordingly. This system does not put typical objectors to any dis- advantage. If, say, in Year One total expenses were $1 million, collective-bargaining expenses amounted to $600,000, and political expenses amounted to $400,000, then the union cannot charge objecting nonmembers more than 60% of normal dues in Year Two. If in Year Two collective-bargaining expenses turned out to be a lesser share of total expenses, say 30%, then the union cannot charge objecting nonmembers more than 30% of the total fee in Year Three. Normally, what the objecting nonmem- bers lose on the swings they will gain on the roundabouts. This kind of basic administrative system is imperfect. The nature of a union’s expenditures, including non- chargeable political expenditures, varies from year to year, for political needs differ at different stages of political cycles. Thus, last year’s percentages will often fail to match this year’s expenditures patterns. And the possibil- ity that an objecting nonmember’s funds will temporarily help the union pay for a nonchargeable political expendi- ture (say, in Year Two) is always present—though in this case that did not happen. See infra, at 6–7. Cite as: 567 U. S. ____ (2012) 5 BREYER, J., dissenting Nonetheless this kind of system enjoys an offsetting administrative virtue. It bases fees upon audited ac- counts, thereby avoiding the difficulties and disagree- ments that would surround an effort to determine the relevant proportions by trying to measure union expendi- tures as they occur or by trying to make predictions about the nature of future expenditures. It consequently gives workers reliable information. It gives workers advance notice of next year’s payable charge. It gives nonmembers a “reasonably prompt” opportunity to object. Hudson, 475 U. S., at 310. And, where the chargeable share of next year’s expenses (Year Two) turns out to be lower than last year’s (Year One), it provides offsetting compensation in the form of a lower payable share for the following year (Year Three). In any event, these features are characteristic of an administrative system that “calculat[es]” shares of a un- ion’s fee “on the basis of its expenses during the preceding year.” Id., at 307, n. 18. Hudson stated specifically that the “[u]nion cannot be faulted for calculating its fee” on that basis. Ibid. And no party here has challenged the constitutional validity of that basic administrative system. See Tr. of Oral Arg. 13. III If the union’s basic administrative system does not violate the Constitution, then how could its special as- sessment have done so? In my view, it did not violate the Constitution, and I shall explain my basis for thinking so by considering separately (1) those nonmembers who objected initially to the 2005 Hudson notice, and (2) those nonmembers who did not initially object. A The special assessment as administered here has worked no constitutional harm upon those nonunion em- 6 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting ployees who raised a general objection at the beginning of the year. The union has honored their objections by sub- tracting from their special payments the same 44% that it subtracts from each of their ordinary monthly payments. App. 309. And we know that the special assessment here did not even work temporary constitutional harm. That is because audited figures showed that the union’s total nonchargeable (e.g., political) expenses for that year ended up as a lower percentage of total expenses than the pre- vious year. Hence the objecting nonmembers ended up being charged too little, not too much, even with the spe- cial assessment thrown into the mix. Let me put the point more specifically. The union’s June 2005 Hudson notice said that the union would charge objecting nonmembers roughly 56% of the dues paid by union members. See App. 102. That 56% figure represented the chargeable portion of expenditures accord- ing to the audited figures from 2004. Thus, if the fee charged to a union member pursuant to the 2005 notice was $400, the fee charged to an objecting nonmember was $224. The union similarly prorated the special assess- ment charging objecting nonmembers 56% of the assess- ment it imposed upon members. Thus, if the special assessment amounted to $50 for a member, it amounted to $28 for an objecting nonmember. And total dues in this example would have amounted to $450 for a member and $252 for a nonmember. In the event, the union’s chargeable expenses for 2005— including the funds raised pursuant to the special assess- ment—amounted to more than 56% of its total expendi- tures. The auditor’s reports show that the union’s total expenditures in 2005 amounted to $40,045,409. Id., at 166. Chargeable expenses amounted to $27,552,746, which works out to 69% of the total budget. Ibid. Thus, a substantially larger portion of the union’s 2005 spending was chargeable (69%) than it had been in 2004 (56%). Cite as: 567 U. S. ____ (2012) 7 BREYER, J., dissenting Objecting nonmembers therefore paid 56% of normal fees, even though the chargeable share that year was 69%. That is to say, they paid less than what the Constitution considers to be their fair share. See Abood, 431 U. S., at 236–237. Even were the underlying facts different, I can find no constitutional basis for charging an objecting nonmember less than the 56% that the preceding year’s audit showed was appropriate. In general, any effort to send a new notice and then apply special percentages to a special midyear assessment fee runs into administrative difficul- ties that, as explained above, are avoided with a retrospec- tive system. See supra, at 6. And, of course, requiring the use of some special proportion based on predicted expendi- tures would contradict Hudson’s determination that prior year, not present year, expenditures can form the basis for the determination of that proportion. See Hudson, supra, at 307, n. 18. In the particular example before us these general prob- lems are camouflaged by the fact that the union itself said that the assessment was to be used for political purposes. Hence it is tempting to say that 100% of the assessment is not chargeable. But future cases are most unlikely to be so clear; disputes will arise over union predictions (say, that only 20% of the special assessment will be used for political purposes); and the Court will then perhaps un- derstand the wisdom of Hudson’s holding. In any event, we have made clear in other cases that money is fungible. Retail Clerks v. Schermerhorn, 373 U.S. 746, 753 (1963). Whether a particular expenditure was funded by regular dues or the special assessment is “of bookkeeping signifi- cance only rather than a matter of real substance.” Ibid. And, the Court’s focus on the announced purposes of the special assessment, rather than yearly expenditures taken as a whole, is beside the point. The Court’s response to these problems, particularly the 8 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting administrative calculation problems, is apparently to de- part yet further from the Court’s earlier holdings. It seems to say that an objector can withhold 100%, not simply of a special assessment made for political purposes, but of any special assessment whatsoever, including an assessment made solely for the purpose of paying for extra chargeable costs, such as extended contract negotiations, pension plan experts, or newly assessed contributions to replenish a national union’s collective-bargaining assis- tance funds. See ante, at 21–22. Although this rule is comparatively simple to administer, it cannot be recon- ciled with the Court’s previous constitutional holdings. Abood, along with every related case the Court has ever decided, makes clear that the Constitution allows a union to assess nonmembers a pro rata share of fees insofar as they are used to pay for these kinds of collective- bargaining expenses. See 431 U. S., at 234–236; see also Lehnert v. Ferris Faculty Assn., 500 U.S. 507, 524 (1991); Machinists v. Street, 367 U.S. 740, 760 (1961); Ellis, 466 U. S., at 447; Davenport v. Washington Ed. Assn., 551 U.S. 177, 181 (2007); Locke v. Karass, 555 U.S. 207, 210 (2009). How could the majority now hold to the contrary? If there are good reasons for requiring departure from the basic Hudson-approved administrative system, they are not the reasons the Court provides. It suggests that the basic Hudson administrative system gives the union the freedom to misclassify, arguing, for example, that the union has adopted an overly broad definition of charge- ability. See ante, at 20–21. The 2005 proportion, however, rested upon audited 2004 accounts. While petitioners argue in this Court that the union misclassified parts of the special assessment (which was not imposed until 2005), no brief filed in this case (and certainly no court below) has challenged the accuracy of the 2004 figures or the resulting chargeable/nonchargeable allocation. In- deed, the 2004 accounts were audited before the special Cite as: 567 U. S. ____ (2012) 9 BREYER, J., dissenting assessment at the center of this case was even imposed. Compare App. 108 (reflecting that the audit of the 2004 budget was completed by April 25, 2005) with id., at 25 (reflecting approval of the special assessment on July 30, 2005). More specifically, the Court suggests that the Consti- tution prohibits the union’s classification of money spent “ ‘lobbying . . . the electorate’ ” as a chargeable expense. See ante, at 20. But California state law explicitly permits the union to classify some lobbying expenses as charge- able. See Cal. Govt. Code Ann. §3515.8 (West 2010) (a nonmember’s fair share includes “the costs of support of lobbying activities designed to foster policy goals and collective negotiations and contract administration”); see also Lillebo v. Davis, 222 Cal. App. 3d 1421, 1442, 272 Cal. Rptr. 638, 651 (1990) (construing §3515.8 narrowly, but explaining that “[w]e cannot fathom how a union’s lobby- ing the Legislature for improvement of the conditions of employment of the members of its bargaining unit . . . could not be considered to be part of its role as representa- tive . . .”). No one has attacked the constitutionality of California’s law; no brief argues the question; and this Court does not normally find state laws unconstitutional without, at least, giving those who favor the law an oppor- tunity to argue the matter. The Court further complains that the basic administra- tive system requires an objecting nonmember to “come up with the resources to mount” a “legal challenge” to the union’s allocation “in a timely fashion.” Ante, at 19. That concern too is misplaced. The union has offered to pay for neutral arbitration of such disputes before the American Arbitration Association. App. 103–104. And, again, inso- far as the Court casts doubt on the constitutional validity of the basic system, the Court does so without the benefit of argument. Finally, the Court argues that (Step 1) Hudson is “pred- 10 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting icated on the assumption that a union’s allocation of funds for chargeable and nonchargeable purposes is not likely to vary greatly from one year to the next,” ante, at 18; that (Step 2) this assumption does not apply to midyear as- sessments; hence (Step 3) what appears binding precedent (namely Hudson) does not bind the Court in its interpreta- tion of the Constitution as applied to those assessments. Ibid. I must jump this logical ship, however, at Step 1. I cannot find in Hudson the “assumption” of uniform ex- penditures that the Court says underlies it. The assump- tion does not appear there explicitly. And it is hard to believe any such assumption could implicitly lurk within a case involving a union’s political expenditures. Those expenditures inevitably vary from political season to season. They inevitably depend upon the number and kind of union-related matters currently visible on the political agenda. Cf., e.g., App. 102, 158, 223 (union’s chargeability proportion varies significantly over three years, from 56.35% in 2004, to 68.8% in 2005, to 60.3% in 2006). And it is hard to believe that the Members of this Court, when deciding Abood, were not fully aware of these obvious facts. B A stronger case can be made for allowing nonmember employees who did not object at the beginning of the dues year to object (for the first time) to a special assessment. That is because, unlike the nonmember who objected initially, the union will not permit that initially nonobject- ing nonmember to withhold anything from the special assessment fee. Nonetheless, there are powerful reasons not to allow the nonmember who did not object initially to the annual fee to object now for the first time to the mid- year special assessment. For one thing, insofar as a new objection permits the Cite as: 567 U. S. ____ (2012) 11 BREYER, J., dissenting new objector to withhold only the portion of the fee that will pay for nonchargeable expenses (as the logic of the concurring Justices would suggest), the administrative problems that I earlier discussed apply. See supra, at 6. That is to say, unions, arbitrators, and courts will have to determine, on the basis of a prediction, how much of the special assessment the new objector can withhold. I con- cede that many administrative problems could be over- come were the new objector allowed to withhold only the same 44% of the fee that the union here permitted ini- tial objectors to withhold (a figure based on 2004 au- dited accounts). But no Member of the Court takes that approach. For another thing, as I have previously pointed out, the Court would permit nonmembers who did not object at the beginning of the year (like those who did then object) to object to (and to pay none of) every special assessment, including those made to raise money to pay additional collective-bargaining expenses. This approach may avoid the uncertainty and resulting disputes inherent in an ef- fort to limit withholding to the nonchargeable portion of the fee. But the price of avoiding those disputes is to reduce the financial contribution the union will receive even when a special assessment pays only for unexpected but perfectly legitimate collective-bargaining expenses. See supra, at 8–10. Moreover, to provide a new opportunity to object re- quires providing for explanations, potential challenges, the development of separate accounts, and additional adminis- trative procedures. That means providing extra time and extra money. By definition, however, special assessments are special; time may matter; and unlike the annual dues payment, the union is unlikely to be able to provide what is here a 6-month delay (between the close of the 2004 audited year and the beginning of the next mid-2005 dues year) that can be used to examine accounts and process 12 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting objections. In a word, a new opportunity to object means time, effort, and funds set aside to deal with a new layer of administrative procedure. I recognize that allowing objections only once a year is only one possible way to administer a fee-charging system. In principle, one might allow nonmembers to pose new objections to their dues payments biannually, or quarterly, or even once a month, as actual expenses do, or do not, correspond to initial union predictions. But for constitu- tional purposes the critical fact is that annual objection is at least one reasonably practical way to permit the princi- pled objector to avoid paying for politics with which he disagrees. See Hudson, 475 U. S., at 307, n. 18. And that is so whether ordinary or special assessments are at stake. Further, the nonmember who did not object initially is not likely to be a nonmember who strongly opposes the union’s politics. That many unions take political posi- tions and that they spend money seeking to advance those positions is not exactly a secret. All those whom this union represents know from history that it spends money each year for nonchargeable purposes. And any nonmem- ber who has significant negative views about such matters is likely to have objected in advance. Those who did not object initially (but do so later) likely include many whose objection rests, not upon constitutionally protected politi- cal grounds, but simply upon a desire not to pay a higher fee. And those who withhold fees for that reason are not entitled to constitutional protection in doing so. Here, the nonobjector cannot even claim that an increase in the total fee (by the amount of the special assessment) took him by surprise, for in its initial Hudson notice the union said that “[d]ues are subject to change without further notice to fee payers.” App. 98. Finally, if the union will not let a nonmember object to a special assessment, that nonmember has an easy remedy. He or she can simply object the first time around. After Cite as: 567 U. S. ____ (2012) 13 BREYER, J., dissenting all, the possibility of a special assessment is known in advance; the possibility that some, or all of it, will help the union make political expenditures is known in advance; the fact that the union will spend a significant amount of ordinary dues upon political matters is known in advance. To obtain protection all a nonmember who believes he might object to some future political expenditure has to do is to object in advance. His or her fees will decline from the beginning. And, if the nonmember forgets to object, there is always next year—when the chargeable amount of the fee will be based on this year’s actual expenditures. Given these considerations, I do not believe the First Amendment requires giving a second objection opportu- nity to those nonmembers who did not object the first time. IV The Court also holds that, “when a public-sector union imposes a special assessment or dues increase,” it “may not exact any funds from nonmembers without their af- firmative consent.” Ante, at 22. In other words, the Court mandates an “opt-in” system in respect to the payment of special assessments. JUSTICE SOTOMAYOR’s concurring opinion explains why the Court is wrong to impose this requirement. See ante, at 2–6 (opinion concurring in judgment). It runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or in the courts below. I agree with her about this matter. The decision is particularly unfortunate given the fact that each reason the Court offers in support of its “opt-in” conclusion seems in logic to apply, not just to special as- sessments, but to ordinary yearly fee charges as well. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate. The debate is generally about whether, the extent to 14 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting which, and the circumstances under which a union that represents nonmembers in collective bargaining can re- quire those nonmembers to help pay for the union’s (con- stitutionally chargeable) collective-bargaining expenses. Twenty-three States have enacted “right to work” laws, which, in effect, prevent unions from requiring nonmem- bers to pay any of those costs. See Dept. of Labor, Wage and Hour Division, State Right-to-Work Laws (Jan. 2009), online at http://www.dol.gov/whd/state/righttowork.htm (as visited June 18, 2012, and available in Clerk of Court’s case file). Other States have rejected the “right to work” approach and permit unions to require contributions from nonmembers, while protecting those nonmembers’ right to opt out of supporting the union’s political activities. E.g., Cal. Govt. Code Ann. §§3502.5(a), 3515.8. Still others have enacted compromise laws that assume a nonmember does not wish to pay the nonchargeable portion of the fee unless he or she affirmatively indicates a desire to do so. See Wash. Rev. Code §42.17A.500 (2010) (providing that a union cannot use a nonmember’s agency fee for political purposes “unless affirmatively authorized by the individ- ual”). The debate about public unions’ collective-bargaining rights is currently intense. The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate. Must the union assume that the nonmember does not intend to pay unless he affirmatively indicates his desire to pay, by “opting in”? Or, may the union assume that the nonmem- ber is willing to pay unless the nonmember indicates a desire not to pay, by “opting out”? Where, as here, non- chargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union’s politics to indicate a choice either way. That being so, an “opt-in” requirement can reduce union revenues significantly, a matter of con- siderable importance to the union, while the additional Cite as: 567 U. S. ____ (2012) 15 BREYER, J., dissenting protection it provides primarily helps only those who are politically near neutral. See generally Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003) (explaining that default rules play an important role when individuals do not have “well- defined preferences”). Consequently, the Court, which held recently that the Constitution permits a State to im- pose an opt-in requirement, see Davenport, 551 U. S., at 185, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it. Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance. For these reasons, with respect, I dissent

In this Court unanimously held that “the Union cannot be faulted for calculating its fee on the basis of its expenses during the preceding year.” That is precisely what the union has done in this case. I see no reason to modify ’s holding as here applied. I consequently dissent. I In the Court held that nonunion public employees have a First Amendment right to prevent a union’s spending a part of their compulsory fees on contributions to political candi- dates or on “express[ions of ] political views unrelated to [the union’s] duties as exclusive bargaining representa- tive.” A decade later in the Court considered the constitutionality of procedures adopted to implement Abood. In particular, the Court considered the procedures adopted by a teachers union “to draw that necessary line and to respond to nonmembers’ objections to the manner in which it was drawn.” The teachers union had calculated the fee it could charge nonmembers during a particular year on the basis of the expenditures the union actually made during the 2 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting prior year. Those nonmembers who objected to the ap- portionment, believing their fee too high, could lodge an objection with the union, proceed through arbitration, and receive a rebate if they won. The Court found this proce- dure constitutionally inadequate. It thought that (1) a rebate “does not avoid the risk that dissenters’ funds may be used temporarily for an improper purpose,” (2) the union had not provided the nonmembers in advance with “sufficient information to gauge the propriety of the un- ion’s fee,” and (3) the union did not provide objectors with “a reasonably prompt decision by an impartial deci- sionmaker.” at 305–307. The Court then held that the Constitution requires that a union collecting a fee from nonmembers provide “an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.” The Court added that it “recognize[d] that there are practical reasons why ‘[a]bsolute precision’ in the calcula- tion of the charge to nonmembers cannot be ‘expected or required.’ ” ). It said that the union retains the burden of proving that a given expense is chargeable to nonmembers, the “nonmember’s ‘burden’ ” be- ing simply that of making “his objection known.” 475 U. S., at 306, n. 16. And it added that the union “cannot be faulted for calculating its fee on the basis of its ex- penses during the preceding year.” For the last 25 years unions and employers across the Nation have relied upon this Court’s statements in in developing administratively workable systems that (1) allow unions to pay the costs of fulfilling their representational obligations to both members and non- members alike, while (2) simultaneously protecting the Cite as: 567 U. S. (2012) 3 BREYER, J., dissenting nonmembers’ constitutional right not to support “‘ideological causes not germane to [the union’s] duties as collective- bargaining agent.’ ” ). See also (explaining that “outlined a minimum set of procedures by which a union in an agency-shop relationship could meet its requirement under Abood”). The Court, in my view, should not depart, or create an exception, from ’s framework here. II Because the administrative details of the fee collection process are critical, I shall begin by explaining how I un- derstand that process to work. The union here followed a basic administrative system that ensures that the fee charged to objecting nonmembers matches their pro rata share of the union’s chargeable expenditures, but it achieves that match only over a period of several years. At the end of 2004, independent auditors determined the amount of chargeable (e.g., collective-bargaining related) expenditures and the amount of nonchargeable (e.g., non- germane political) expenditures that the union ac- tually made during 2004. The union then used the resulting proportion (which was about 56% chargeable, 44% non- chargeable) as the basis for apportioning the next year’s dues. Thus in June 2005, the union sent all represented employees a notice setting forth that (roughly) 56 to 44 figure. App. 96–106. It provided time for nonmem- bers to object or to challenge the figure or underlying data. at 98–104. And it then applied the resulting figure to determine the percentage of the total fee that objecting nonmembers would have to pay during the next fee-year, which ran from July 2005 to June 2006. At the end of 2005, auditors again examined the union’s actual expenditures made during 2005. And the union then used those newly audited figures to determine the 4 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting chargeable percentage for the fee-year 2006–2007. at 158. Since political expenditures during calendar year 2005 turned out to be lower than in 2004, the new charge- able share amounted to about 69% of the total fee bill. Simplifying further to illustrate, I shall describe the system as (1) using audited accounts for Year One to determine the proportion of the fee that objectors must pay during Year Two, and (2) using audited accounts for Year Two to determine the proportion of the fee that ob- jectors must pay during Year Three. If Year One’s chargeable share (as applied to Year Two) turns out to be too high, Year Two’s audited accounts will reflect that fact, and the payable share for Year Three will be reduced accordingly. This system does not put typical objectors to any dis- advantage. If, say, in Year One total expenses were $1 million, collective-bargaining expenses amounted to $600,000, and political expenses amounted to $400,000, then the union cannot charge objecting nonmembers more than 60% of normal dues in Year Two. If in Year Two collective-bargaining expenses turned out to be a lesser share of total expenses, say 30%, then the union cannot charge objecting nonmembers more than 30% of the total fee in Year Three. Normally, what the objecting nonmem- bers lose on the swings they will gain on the roundabouts. This kind of basic administrative system is imperfect. The nature of a union’s expenditures, including non- chargeable political expenditures, varies from year to year, for political needs differ at different stages of political cycles. Thus, last year’s percentages will often fail to match this year’s expenditures patterns. And the possibil- ity that an objecting nonmember’s funds will temporarily help the union pay for a nonchargeable political expendi- ture (say, in Year Two) is always present—though in this case that did not happen. See infra, –7. Cite as: 567 U. S. (2012) 5 BREYER, J., dissenting Nonetheless this kind of system enjoys an offsetting administrative virtue. It bases fees upon audited ac- counts, thereby avoiding the difficulties and disagree- ments that would surround an effort to determine the relevant proportions by trying to measure union expendi- tures as they occur or by trying to make predictions about the nature of future expenditures. It consequently gives workers reliable information. It gives workers advance notice of next year’s payable charge. It gives nonmembers a “reasonably prompt” opportunity to object. 475 U. S., And, where the chargeable share of next year’s expenses (Year Two) turns out to be lower than last year’s (Year One), it provides offsetting compensation in the form of a lower payable share for the following year (Year Three). In any event, these features are characteristic of an administrative system that “calculat[es]” shares of a un- ion’s fee “on the basis of its expenses during the preceding year.” stated specifically that the “[u]nion cannot be faulted for calculating its fee” on that basis. And no party here has challenged the constitutional validity of that basic administrative system. See Tr. of Oral Arg. 13. III If the union’s basic administrative system does not violate the Constitution, then how could its special as- sessment have done so? In my view, it did not violate the Constitution, and I shall explain my basis for thinking so by considering separately (1) those nonmembers who objected initially to the 2005 notice, and (2) those nonmembers who did not initially object. A The special assessment as administered here has worked no constitutional harm upon those nonunion em- 6 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting ployees who raised a general objection at the beginning of the year. The union has honored their objections by sub- tracting from their special payments the same 44% that it subtracts from each of their ordinary monthly payments. App. 309. And we know that the special assessment here did not even work temporary constitutional harm. That is because audited figures showed that the union’s total nonchargeable (e.g., political) expenses for that year ended up as a lower percentage of total expenses than the pre- vious year. Hence the objecting nonmembers ended up being charged too little, not too much, even with the spe- cial assessment thrown into the mix. Let me put the point more specifically. The union’s June 2005 notice said that the union would charge objecting nonmembers roughly 56% of the dues paid by union members. See App. 102. That 56% figure represented the chargeable portion of expenditures accord- ing to the audited figures from 2004. Thus, if the fee charged to a union member pursuant to the 2005 notice was $400, the fee charged to an objecting nonmember was $224. The union similarly prorated the special assess- ment charging objecting nonmembers 56% of the assess- ment it imposed upon members. Thus, if the special assessment amounted to $50 for a member, it amounted to $28 for an objecting nonmember. And total dues in this example would have amounted to $450 for a member and $252 for a nonmember. In the event, the union’s chargeable expenses for 2005— including the funds raised pursuant to the special assess- ment—amounted to more than 56% of its total expendi- tures. The auditor’s reports show that the union’s total expenditures in 2005 amounted to $40,045,409. at 166. Chargeable expenses amounted to $27,552,746, which works out to 69% of the total budget. Thus, a substantially larger portion of the union’s 2005 spending was chargeable (69%) than it had been in 2004 (56%). Cite as: 567 U. S. (2012) 7 BREYER, J., dissenting Objecting nonmembers therefore paid 56% of normal fees, even though the chargeable share that year was 69%. That is to say, they paid less than what the Constitution considers to be their fair share. See Abood, 431 U. S., at 236–237. Even were the underlying facts different, I can find no constitutional basis for charging an objecting nonmember less than the 56% that the preceding year’s audit showed was appropriate. In general, any effort to send a new notice and then apply special percentages to a special midyear assessment fee runs into administrative difficul- ties that, as explained above, are avoided with a retrospec- tive system. See And, of course, requiring the use of some special proportion based on predicted expendi- tures would contradict ’s determination that prior year, not present year, expenditures can form the basis for the determination of that proportion. See In the particular example before us these general prob- lems are camouflaged by the fact that the union itself said that the assessment was to be used for political purposes. Hence it is tempting to say that 100% of the assessment is not chargeable. But future cases are most unlikely to be so clear; disputes will arise over union predictions (say, that only 20% of the special assessment will be used for political purposes); and the Court will then perhaps un- derstand the wisdom of ’s holding. In any event, we have made clear in other cases that money is fungible. Retail Whether a particular expenditure was funded by regular dues or the special assessment is “of bookkeeping signifi- cance only rather than a matter of real substance.” And, the Court’s focus on the announced purposes of the special assessment, rather than yearly expenditures taken as a whole, is beside the point. The Court’s response to these problems, particularly the 8 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting administrative calculation problems, is apparently to de- part yet further from the Court’s earlier holdings. It seems to say that an objector can withhold 100%, not simply of a special assessment made for political purposes, but of any special assessment whatsoever, including an assessment made solely for the purpose of paying for extra chargeable costs, such as extended contract negotiations, pension plan experts, or newly assessed contributions to replenish a national union’s collective-bargaining assis- tance funds. See ante, at 21–22. Although this rule is comparatively simple to administer, it cannot be recon- ciled with the Court’s previous constitutional holdings. Abood, along with every related case the Court has ever decided, makes clear that the Constitution allows a union to assess nonmembers a pro rata share of fees insofar as they are used to pay for these kinds of collective- bargaining expenses. See 431 U. S., –236; see also ; ; Ellis, 466 U. S., at ; Davenport v. Washington Ed. Assn., 551 U.S. 7, 181 (2007); (2009). How could the majority now hold to the contrary? If there are good reasons for requiring departure from the basic -approved administrative system, they are not the reasons the Court provides. It suggests that the basic administrative system gives the union the freedom to misclassify, arguing, for example, that the union has adopted an overly broad definition of charge- ability. See ante, at 20–21. The 2005 proportion, however, rested upon audited 2004 accounts. While petitioners argue in this Court that the union misclassified parts of the special assessment (which was not imposed until 2005), no brief filed in this case (and certainly no court below) has challenged the accuracy of the 2004 figures or the resulting chargeable/nonchargeable allocation. In- deed, the 2004 accounts were audited before the special Cite as: 567 U. S. (2012) 9 BREYER, J., dissenting assessment at the center of this case was even imposed. Compare App. 108 (reflecting that the audit of the 2004 budget was completed by April 25, 2005) with (reflecting approval of the special assessment on July 30, 2005). More specifically, the Court suggests that the Consti- tution prohibits the union’s classification of money spent “ ‘lobbying the electorate’ ” as a chargeable expense. See ante, at 20. But California state law explicitly permits the union to classify some lobbying expenses as charge- able. See Cal. Govt. Code Ann. (West 2010) (a nonmember’s fair share includes “the costs of support of lobbying activities designed to foster policy goals and collective negotiations and contract administration”); see also 272 Cal. Rptr. 638, 651 (construing narrowly, but explaining that “[w]e cannot fathom how a union’s lobby- ing the Legislature for improvement of the conditions of employment of the members of its bargaining unit could not be considered to be part of its role as representa- tive”). No one has attacked the constitutionality of California’s law; no brief argues the question; and this Court does not normally find state laws unconstitutional without, at least, giving those who favor the law an oppor- tunity to argue the matter. The Court further complains that the basic administra- tive system requires an objecting nonmember to “come up with the resources to mount” a “legal challenge” to the union’s allocation “in a timely fashion.” Ante, at 19. That concern too is misplaced. The union has offered to pay for neutral arbitration of such disputes before the American Arbitration Association. App. 103–104. And, again, inso- far as the Court casts doubt on the constitutional validity of the basic system, the Court does so without the benefit of argument. Finally, the Court argues that (Step 1) is “pred- 10 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting icated on the assumption that a union’s allocation of funds for chargeable and nonchargeable purposes is not likely to vary greatly from one year to the next,” ante, at 18; that (Step 2) this assumption does not apply to midyear as- sessments; hence (Step 3) what appears binding precedent (namely ) does not bind the Court in its interpreta- tion of the Constitution as applied to those assessments. I must jump this logical ship, however, at Step 1. I cannot find in the “assumption” of uniform ex- penditures that the Court says underlies it. The assump- tion does not appear there explicitly. And it is hard to believe any such assumption could implicitly lurk within a case involving a union’s political expenditures. Those expenditures inevitably vary from political season to season. They inevitably depend upon the number and kind of union-related matters currently visible on the political agenda. Cf., e.g., App. 102, 158, 223 (union’s chargeability proportion varies significantly over three years, from 56.35% in 2004, to 68.8% in 2005, to 60.3% in 2006). And it is hard to believe that the Members of this Court, when deciding Abood, were not fully aware of these obvious facts. B A stronger case can be made for allowing nonmember employees who did not object at the beginning of the dues year to object (for the first time) to a special assessment. That is because, unlike the nonmember who objected initially, the union will not permit that initially nonobject- ing nonmember to withhold anything from the special assessment fee. Nonetheless, there are powerful reasons not to allow the nonmember who did not object initially to the annual fee to object now for the first time to the mid- year special assessment. For one thing, insofar as a new objection permits the Cite as: 567 U. S. (2012) 11 BREYER, J., dissenting new objector to withhold only the portion of the fee that will pay for nonchargeable expenses (as the logic of the concurring Justices would suggest), the administrative problems that I earlier discussed apply. See That is to say, unions, arbitrators, and courts will have to determine, on the basis of a prediction, how much of the special assessment the new objector can withhold. I con- cede that many administrative problems could be over- come were the new objector allowed to withhold only the same 44% of the fee that the union here permitted ini- tial objectors to withhold (a figure based on 2004 au- dited accounts). But no Member of the Court takes that approach. For another thing, as I have previously pointed out, the Court would permit nonmembers who did not object at the beginning of the year (like those who did then object) to object to (and to pay none of) every special assessment, including those made to raise money to pay additional collective-bargaining expenses. This approach may avoid the uncertainty and resulting disputes inherent in an ef- fort to limit withholding to the nonchargeable portion of the fee. But the price of avoiding those disputes is to reduce the financial contribution the union will receive even when a special assessment pays only for unexpected but perfectly legitimate collective-bargaining expenses. See at 8–10. Moreover, to provide a new opportunity to object re- quires providing for explanations, potential challenges, the development of separate accounts, and additional adminis- trative procedures. That means providing extra time and extra money. By definition, however, special assessments are special; time may matter; and unlike the annual dues payment, the union is unlikely to be able to provide what is here a 6-month delay (between the close of the 2004 audited year and the beginning of the next mid-2005 dues year) that can be used to examine accounts and process 12 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting objections. In a word, a new opportunity to object means time, effort, and funds set aside to deal with a new layer of administrative procedure. I recognize that allowing objections only once a year is only one possible way to administer a fee-charging system. In principle, one might allow nonmembers to pose new objections to their dues payments biannually, or quarterly, or even once a month, as actual expenses do, or do not, correspond to initial union predictions. But for constitu- tional purposes the critical fact is that annual objection is at least one reasonably practical way to permit the princi- pled objector to avoid paying for politics with which he disagrees. See 475 U. S., And that is so whether ordinary or special assessments are at stake. Further, the nonmember who did not object initially is not likely to be a nonmember who strongly opposes the union’s politics. That many unions take political posi- tions and that they spend money seeking to advance those positions is not exactly a secret. All those whom this union represents know from history that it spends money each year for nonchargeable purposes. And any nonmem- ber who has significant negative views about such matters is likely to have objected in advance. Those who did not object initially (but do so later) likely include many whose objection rests, not upon constitutionally protected politi- cal grounds, but simply upon a desire not to pay a higher fee. And those who withhold fees for that reason are not entitled to constitutional protection in doing so. Here, the nonobjector cannot even claim that an increase in the total fee (by the amount of the special assessment) took him by surprise, for in its initial notice the union said that “[d]ues are subject to change without further notice to fee payers.” App. 98. Finally, if the union will not let a nonmember object to a special assessment, that nonmember has an easy remedy. He or she can simply object the first time around. After Cite as: 567 U. S. (2012) 13 BREYER, J., dissenting all, the possibility of a special assessment is known in advance; the possibility that some, or all of it, will help the union make political expenditures is known in advance; the fact that the union will spend a significant amount of ordinary dues upon political matters is known in advance. To obtain protection all a nonmember who believes he might object to some future political expenditure has to do is to object in advance. His or her fees will decline from the beginning. And, if the nonmember forgets to object, there is always next year—when the chargeable amount of the fee will be based on this year’s actual expenditures. Given these considerations, I do not believe the First Amendment requires giving a second objection opportu- nity to those nonmembers who did not object the first time. IV The Court also holds that, “when a public-sector union imposes a special assessment or dues increase,” it “may not exact any funds from nonmembers without their af- firmative consent.” Ante, at 22. In other words, the Court mandates an “opt-in” system in respect to the payment of special assessments. JUSTICE SOTOMAYOR’s concurring opinion explains why the Court is wrong to impose this requirement. See ante, at 2–6 (opinion concurring in judgment). It runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or in the courts below. I agree with her about this matter. The decision is particularly unfortunate given the fact that each reason the Court offers in support of its “opt-in” conclusion seems in logic to apply, not just to special as- sessments, but to ordinary yearly fee charges as well. At least, its opinion can be so read. And that fact virtually guarantees that the opinion will play a central role in an ongoing, intense political debate. The debate is generally about whether, the extent to 14 KNOX v. SERVICE EMPLOYEES BREYER, J., dissenting which, and the circumstances under which a union that represents nonmembers in collective bargaining can re- quire those nonmembers to help pay for the union’s (con- stitutionally chargeable) collective-bargaining expenses. Twenty-three States have enacted “right to work” laws, which, in effect, prevent unions from requiring nonmem- bers to pay any of those costs. See Dept. of Labor, Wage and Hour Division, State Right-to-Work Laws (Jan. 2009), online at http://www.dol.gov/whd/state/righttowork.htm (as visited June 18, 2012, and available in Clerk of Court’s case file). Other States have rejected the “right to work” approach and permit unions to require contributions from nonmembers, while protecting those nonmembers’ right to opt out of supporting the union’s political activities. E.g., Cal. Govt. Code Ann. 3515.8. Still others have enacted compromise laws that assume a nonmember does not wish to pay the nonchargeable portion of the fee unless he or she affirmatively indicates a desire to do so. SeeA.500 (2010) (providing that a union cannot use a nonmember’s agency fee for political purposes “unless affirmatively authorized by the individ- ual”). The debate about public unions’ collective-bargaining rights is currently intense. The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate. Must the union assume that the nonmember does not intend to pay unless he affirmatively indicates his desire to pay, by “opting in”? Or, may the union assume that the nonmem- ber is willing to pay unless the nonmember indicates a desire not to pay, by “opting out”? Where, as here, non- chargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union’s politics to indicate a choice either way. That being so, an “opt-in” requirement can reduce union revenues significantly, a matter of con- siderable importance to the union, while the additional Cite as: 567 U. S. (2012) 15 BREYER, J., dissenting protection it provides primarily helps only those who are politically near neutral. See generally Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003) (explaining that default rules play an important role when individuals do not have “well- defined preferences”). Consequently, the Court, which held recently that the Constitution permits a State to im- pose an opt-in requirement, see Davenport, 551 U. S., at 185, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it. Of course, principles of stare decisis are not absolute. But the Court cannot be right when it departs from those principles without benefit of argument in a matter of such importance. For these reasons, with respect, I dissent

Justice Breyer

majority

Rehaif v. United States

2019-06-21

https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4632240/

2018-066

A federal statute, 18 U.S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid. A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2). At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See 888 F.3d 1138, 1148 (2018). The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. Id., at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under §922(g) and §924(a)(2), the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605 (1994). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); see also Morissette v. United States, 342 U.S. 246, 256–258 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See Staples, 511 U.S., at 606. But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985) (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of §924(a)(2) says that “[w]hoever knowingly violates” certain subsec- tions of §922, including §922(g), “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of §922(g) in turn provides that it “shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in §924(a)(2) modifies the verb “violates” and its direct object, which in this case is §922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” §922(g). With some here-irrelevant omis- sions, §922(g) makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___– ___ (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See id., at ___ (slip op., at 16). Jurisdictional element aside, however, the text of §922(g) simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a Cite as: 588 U. S. ____ (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659 (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to §922(g)’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. See United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g). B Beyond the text, our reading of §922(g) and §924(a)(2) is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- sette, 342 U.S., at 250. Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement Video, 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., id., at 70; Staples, 511 U.S., at 610; Liparota v. United States, 471 U.S. 419, 425 (1985); United States v. Bailey, 444 U.S. 394, 406, n. 6 (1980); United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978); Morissette, 342 U.S., at 250–251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See Staples, 511 U.S., at 605. And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement Video, 513 U.S., at 70. Applying the word “knowingly” to the defendant’s status in §922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples, 511 U.S., at 611. It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United States v. Balint, 258 U.S. 250, 254 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See Staples, 511 U.S., at 606; Morissette, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Video, 513 U.S., at 72. Hence, this exception to the presumption Cite as: 588 U. S. ____ (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. §1924(a). Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. §861(a)(2). A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. §2251(b). We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement Video, 513 U.S., at 73. But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under §922(g) and §924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” §922(g)(1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See Staples, 511 U.S., at 615, n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U.S. 192, 199 (1991). This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”). Cite as: 588 U. S. ____ (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law §5.1(d), at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” 471 U.S., at 420 (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” Id., at 425, n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See ibid. This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, 52 Stat. 1250. In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, 82 Stat. 197. Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921, which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, 496 F.2d 922, 926 (1974). And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. ____ (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10) (citing Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)). We conclude that in a prosecution under 18 U.S. C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other §922(g) provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in §922(g) not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. ____ (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. §924(a)(2) “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. §922(g) “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance . . . ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) . . . has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. ____ (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–9560 _________________ HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

A federal statute, 18 U.S. C. provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” A separate provision, adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of and At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under and the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See v. United States, 511 U.S. 600, 605 (4). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Inc., 513 U.S. 64, 72 (4); see also We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code p. 22 (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of says that “[w]hoever knowingly violates” certain subsec- tions of including “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of in turn provides that it “shall be unlawful for any person being an alien illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in modifies the verb “violates” and its direct object, which in this case is The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” With some here-irrelevant omis- sions, makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. – (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See at (slip op., at 16). Jurisdictional element aside, however, the text of simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also (we “ordinarily read a Cite as: 588 U. S. (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to ’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second element but not the first. See United States v. Games-Perez, (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” Congress intended to require the Government to establish that the defendant knew he violated the material elements of B Beyond the text, our reading of and is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., ; ; ; United ; United (1978); Moris, –251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement 513 U.S., Applying the word “knowingly” to the defendant’s status in helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See ; Moris, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Hence, this exception to the presumption Cite as: 588 U. S. (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under and to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” (1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. ; see also Model Penal Code at 27 (a mistake of law is a defense if the mistake negates the “knowledge required to establish a material element of the offense”). Cite as: 588 U. S. (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” at n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, note following 18 U.S. C. which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. (2019) (slip op., at 10) ). We conclude that in a prosecution under 18 U.S. C. and the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–9560 HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

Justice Alito

dissenting

Rehaif v. United States

2019-06-21

https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4632240/

2018-066

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of §922(g) or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of §922(g) had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of §922(g) dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of §922(g), does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. ____ (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. 888 F.3d 1138, 1140 (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- nated. 888 F.3d, at 1140–1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under §922(g) for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been terminated. Following what was then the universal and long- established interpretation of §922(g), the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. Id., at 1140. Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of §922(g) and a com- panion provision, 18 U.S. C. §924(a)(2), dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection . . . (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. §922(g) provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. §802)); “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. ____ (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when §924(a)(2) and §922(g) are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from §924(a)(2). He then transplants it into the beginning of §922(g), ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. §1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the §922(g) offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from §924(a)(2), sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the §922(g) offense. Of course, there is no logical reason why this jump has to land at that particular point in §922(g). That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want §922(g) to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009). But when the term “knowingly” is excised from §924(a)(2) and inserted at the beginning of §922(g), what we get is something quite different: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition . . . . Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. ____ (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating §924(a)(1) and §922(g) that minimizes the changes in the language of the two provisions: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . and possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien who—is illegally or un- lawfully in the United States . . . to possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien, who—is illegally or un- lawfully in the United States, . . . to possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of §922(g), but as noted, there is no reason why this term’s leap from §924(a)(2) must land at that point. So our new version of §922(g) could just as logically read like this: Whoever . . . It is unlawful for any person . . . who, being an alien who—is illegally or unlawfully in the United States . . . to knowingly possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] That would make it clear that the long-established inter- pretation of §922(g) is correct. What these possibilities show is that any attempt to combine the relevant language from §924(a)(2) with the language of §922(g) necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If §§922(g) and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in §§924(a)(2) and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of §§924(a)(2) and 922(g) can be read to require that a defendant know that his conduct is a violation of §922(g). In ordinary speech, to knowingly Cite as: 588 U. S. ____ (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of §§922(g) and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 (1976). But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United States v. Bishop, 412 U.S. 346, 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in §922(g), provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to §922(g), that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of §922(g), which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into §922(g), would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. ____ (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read §922(g) if Congress had incorporated the knowledge requirement into §922(g) after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of §922(g) to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to §922(g)’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. §2251(b) punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. §1924(a) punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. §861(a) prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally . . . receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating §922(g)’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ___; United States v. Yermian, 468 U.S. 63 (1984); United States v. Feola, 420 U.S. 671 (1975). We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. §111, is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of appeals, Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law enforcement. 420 U.S., at 679. A similar consideration appears to provide the basis for the conclusion that a §922(g) defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. ____ (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of §922(g)’s status element is also not required. Whether a defendant falls into one of the §922(g) categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in §922(g)(4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” 27 CFR §478.11(a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted §922(g) to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger . . . to others” due to mental illness or incompetency, should he escape the reach of §922(g) because he does not know that a court has so found? Or consider the category defined by §922(g)(8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury . . . .” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under §922(g) by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by §922(g)(9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. ____ (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United States v. Hayes, 555 U.S. 415 (2009), the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. ___ (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with id., at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in 1996 to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside §922(g)(8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted §922(g)’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. Barrett v. United States, 423 U.S. 212, 218 (1976). It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the §922(g) status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old Chief v. United States, 519 U.S. 172 (1997), it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a §922(g) defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, id., at 186–190, but the Court held that a §922(g) defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. ____ (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that §922(g) requires proof of status but not of knowledge. See id., at 190 (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of §922(g) would lead to an anomaly that Congress is unlikely to have intended. Another provision of §922—i.e., §922(d)(5)(A)— prohibits firearms sellers from selling to persons who fall within a §922(g) category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the §922(g) cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the §922(g) categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of §922(g)’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to §924(a)(2), federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, 82 Stat. 197; Gun Control Act of 1968, Pub. L. 90–618, 82 Stat. 1213, note following 18 U.S. C. §921. These predecessors of §922(g) did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United States v. Santiesteban, 825 F.2d 779, 782–783 (CA4 1987); United States v. Schmitt, 748 F.2d 249, 252 (CA5 1984); United States v. Oliver, 683 F.2d 224, 229 (CA7 1982); United States v. Lupino, 480 F.2d 720, 723–724 (CA8 1973); United States v. Pruner, 606 F.2d 871, 873–874 (CA9 1979).3 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., People v. Nieto, 247 Cal. App. 2d 364, 368, 55 Cal. Rptr. 546, 549 (1966). People v. Tenorio, 197 Colo. 137, 144–145, 590 P.2d 952, 957 (1979); State v. Harmon, 25 Ariz. App. 137, 139, 541 P.2d 600, 602 (1975); State v. Heald, 382 A.2d 290, 297 (Me. 1978); Williams v. State, 565 P.2d 46, 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted §924(a)(2)’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Ryan v. Valencia Gonzales, 568 U.S. 57, 66 (2013) (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 (citing United States v. Renner, 496 F.2d 922, 924, 927 (1974)). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, §922(n), and punished only willful violations, see §924(a)(1)(D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. ____ (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in §924(a)(2) “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to §922(g)’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of appeals should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of appeals, 420 U.S., at 676; see also Luna Torres, 578 U. S., at ___, ___ (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of appeals to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left §922(g) off the list of offenses requiring knowledge in §924(a)(2), some may have invoked expressio unius to argue that a violation of §922(g) required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). 6 See United States v. Smith, 940 F.2d 710, 713 (CA1 1991); United States v. Huet, 665 F.3d 588, 596 (CA3 2012); United States v. Langley, 62 F.3d 602, 604–608 (CA4 1995) (en banc); United States v. Rose, 587 F.3d 695, 705–706, and n. 9 (CA5 2009) (per curiam); United States v. Dancy, 861 F.2d 77, 80–82 (CA5 1988) (per curiam); United States v. Lane, 267 F.3d 715, 720 (CA7 2001); United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United States v. Kind, 194 F.3d 900, 907 (CA8 1999); United States v. Miller, 105 F.3d 552, 555 (CA9 1997); United States v. Games-Perez, 667 F.3d 1136, 1142 (CA10 2012); United States v. Capps, 77 F.3d 350, 352–354 (CA10 1996); United States v. Jackson, 120 F.3d 1226, 1229 (CA11 1997) (per curiam); United States v. Bryant, 523 F.3d 349, 354 (CADC 2008). 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to §922(g) have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. ___ (2015); United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. . . . A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United States v. Gomez- Mendez, 486 F.3d 599, 603, n. 7 (CA9 2007) (citation omitted). Similarly, 18 U.S. C. §2243(a) makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. ____ (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. §2241(d). I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. 41 CFR §102–74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. §111 and §113. Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See Liparota v. United States, 471 U.S. 419, 425 (1985) (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement Video, 513 U.S., at 70–72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting Figueroa, 556 U.S., at 652; id., at 660 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, §922(g) is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the §922(g) offense. As we said in Staples v. United States, 511 U.S. 600, 609 (1994), “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in §922(g), there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United States v. Freed, 401 U.S. 601 (1971); United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Balint, 258 U.S. 250 (1922); United States v. Behrman, 258 U.S. 280 (1922). In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to §922(g)’s status element, that Cite as: 588 U. S. ____ (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S. 125, 138 (1998) (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C. §922(g).8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. §2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. Bousley v. United States, 523 U.S. 614, 618–619 (1998). If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. §922(g), with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United States v. Jones, 172 F.3d 381, 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 (CA8 1998); United States v. Benboe, 157 F.3d 1181, 1184 (CA9 1998). This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. ___, ___–___ (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to §922(g). The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of §922(g) is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for convictions. Applications for relief by federal prisoners sentenced under will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- 888 F.3d, at –1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been termi Following what was then the universal and long- established interpretation of the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. at Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of and a com- panion provision, 18 U.S. C. dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when and are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from He then transplants it into the beginning of ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the offense. Of course, there is no logical reason why this jump has to land at that particular point in That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in But when the term “knowingly” is excised from and inserted at the beginning of what we get is something quite different: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States to possess in or affecting commerce, any firearm or ammunition Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating and that minimizes the changes in the language of the two provisions: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States and possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly It is unlawful for any per- son who, being an alien who—is illegally or un- lawfully in the United States to possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly It is unlawful for any per- son who, being an alien, who—is illegally or un- lawfully in the United States, to possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of but as noted, there is no reason why this term’s leap from must land at that point. So our new version of could just as logically read like this: Whoever It is unlawful for any person who, being an alien who—is illegally or unlawfully in the United States to knowingly possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] That would make it clear that the long-established inter- pretation of is correct. What these possibilities show is that any attempt to combine the relevant language from with the language of necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If § and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in § and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of § and 922(g) can be read to require that a defendant know that his conduct is a violation of In ordinary speech, to knowingly Cite as: 588 U. S. (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of § and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read if Congress had incorporated the knowledge requirement into after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to ’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating ’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ; United States v. Yermian, ; United We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law A similar consideration appears to provide the basis for the conclusion that a defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of ’s status element is also not required. Whether a defendant falls into one of the categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in (4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” (a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger to others” due to mental illness or incompetency, should he escape the reach of because he does not know that a court has so found? Or consider the category defined by (8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by (9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside (8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted ’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, at 186–190, but the Court held that a defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that requires proof of status but not of knowledge. See (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of would lead to an anomaly that Congress is unlikely to have intended. Another provision of prohibits firearms sellers from selling to persons who fall within a category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of ’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, ; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, ; Gun Control Act of 1968, Pub. L. 90–618, note following 18 U.S. C. These predecessors of did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United ; United ; United ; United 723–724 (CA8 1973); United 873–8743 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., 55 Cal. Rptr. 546, 549 (19). 144–145, ; ; State v. Heald, 382 A.2d 290, 297 (Me. 1978); 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted ’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, note following 18 U.S. C. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 ). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, and punished only willful violations, see (D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to ’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of ; see also Luna Torres, 578 U. S., at (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left off the list of offenses requiring knowledge in some may have invoked expressio unius to argue that a violation of required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 6 See United ; United 5 F.3d 588, ; United 62 F.3d ; United States v. Rose, 587 F.3d 695, 705–706, and n. 9 ; United States v. Dancy, ; United States v. Lane, ; United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United (CA8 1999); United ; United ; United States v. Capps, ; United 1 ; United 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. (2015); United ; Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United (citation omitted). Similarly, 18 U.S. C. makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. –74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. and Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement –72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting 556 U.S., at ; at 0 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the offense. As we said in Staples v. United States, “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United ; United States v. Dotterweich, ; United States v. Balint, ; United In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to ’s status element, that Cite as: 588 U. S. (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C.8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. 618–619 If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 ; United States v. Benboe, 157 F.3d 1181, 1184 This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. – (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

Justice Breyer

majority

Cedric Kushner Promotions, Ltd. v. King

2001-06-11

https://www.courtlistener.com/opinion/1268548/cedric-kushner-promotions-ltd-v-king/

https://www.courtlistener.com/api/rest/v3/clusters/1268548/

2000-073

The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U.S. C. § 1961 et seq., makes it "unlawful for any person employed by or associated with any enterprise . . . to conduct or participate . . . in the conduct of such enterprise's affairs" through the commission of two or more statutorily defined crimes—which RICO calls "a pattern of racketeering activity." § 1962(c). The language suggests, and lower courts have held, that this provision foresees two separate entities, a "person" and a distinct "enterprise." This case focuses upon a person who is the president and sole shareholder of a closely held corporation. The plaintiff claims that the president has conducted the corporation's affairs through the forbidden "pattern," though for present purposes it is conceded that, in doing so, he acted within the scope of his authority as the corporation's employee. In these circumstances, are there two entities, a "person" and a separate "enterprise"? Assuming, as we must given the posture of this case, that the allegations in the complaint are true, we conclude that the "person" and "enterprise" here are distinct and that the RICO provision applies. Petitioner, Cedric Kushner Promotions, Ltd., is a corporation that promotes boxing matches. Petitioner sued Don King, the president and sole shareholder of Don King Productions, a corporation, claiming that King had conducted the boxing-related affairs of Don King Productions in part through a RICO "pattern," i. e., through the alleged commission of at least two instances of fraud and other RICO predicate *161 crimes. The District Court, citing Court of Appeals precedent, dismissed the complaint. Civ. No. 98-6859, 1999 WL 771366, *3-4 (SDNY, Sept. 28, 1999). And the Court of Appeals affirmed that dismissal. 219 F.3d 115 (CA2 2000) (per curiam). In the appellate court's view, § 1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. Id., at 116. In this instance, "it is undisputed that King was an employee" of the corporation Don King Productions and also "acting within the scope of his authority." Id., at 117. Under the Court of Appeals' analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no "person," distinct from the "enterprise," who improperly conducted the "enterprise's affairs." And thus § 1962(c) did not apply. Ibid. Other Circuits, applying § 1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e. g., Brannon v. Boatmen's First Nat. Bank of Okla., 153 F.3d 1144, 1148, n. 4 (CA10 1998); Richmond v. Nationwide Cassel L. P., 52 F.3d 640, 647 (CA7 1995); Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 265, 269 (CA3 1995); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (CA9 1992). We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit's interpretation of § 1962(c) is erroneous. We do not quarrel with the basic principle that to establish liability under § 1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. The statute's language, read as ordinary English, suggests that principle. The Act says that it applies to "person[s]" who are "employed by or associated with" the "enterprise." § 1962(c). In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. See Webster's Third New International Dictionary 132 (1993) (defining "associate"); id., at 743 (defining *162 "employ"). In addition, the Act's purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, S. Rep. No. 91-617, p. 77 (1969), or to prevent a person from using a corporation for criminal purposes, National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 259 (1994), the person and the victim, or the person and the tool, are different entities, not the same. The Government reads § 1962(c) "to require some distinctness between the RICO defendant and the RICO enterprise." Brief for United States as Amicus Curiae 11. And it says that this requirement is "legally sound and workable." Ibid. We agree with its assessment, particularly in light of the fact that 12 Courts of Appeals have interpreted the statute as embodying some such distinctness requirement without creating discernible mischief in the administration of RICO. See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 445 (CA5 2000); United States v. Goldin Industries, Inc., 219 F.3d 1268, 1270 (CA11) (en banc), cert. denied, 531 U.S. 1102 (2000); Begala v. PNC Bank, 214 F.3d 776, 781 (CA6 2000), cert. denied, 531 U.S. 1145 (2001); Doyle v. Hasbro, Inc., 103 F.3d 186, 190 (CA1 1996); Richmond, supra, at 646-647; Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d 70, 72-73 (CA3 1994); Confederate Memorial Assn., Inc. v. Hines, 995 F.2d 295, 299-300 (CADC 1993); Board of Cty. Comm'rs, San Juan Cty. v. Liberty Group, 965 F.2d 879, 885 (CA10), cert. denied, 506 U.S. 918 (1992); River City Markets, Inc. v. Fleming Foods West, Inc., 960 F.2d 1458, 1461 (CA9 1992); Busby v. Crown Supply, Inc., 896 F.2d 833, 840 (CA4 1990); Atlas Pile Driving Co. v. DiCon Financial Co., 886 F.2d 986, 995 (CA8 1989); Bennett v. United States Trust Co. of New York, 770 F.2d 308, 315, and n. 2 (CA2 1985), cert. denied, 474 U.S. 1058 (1986); see also Semiconductor Energy Laboratory Co. v. Samsung Electronics Co., 204 F.3d 1368, 1383, n. 7 (CA Fed. 2000) (approving of distinctness requirement in dicta), cert. *163 denied, 531 U.S. 1050 (2001). Indeed, this Court previously has said that liability "depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." Reves v. Ernst & Young, 507 U.S. 170, 185 (1993). While accepting the "distinctness" principle, we nonetheless disagree with the appellate court's application of that principle to the present circumstances—circumstances in which a corporate employee, "acting within the scope of his authority," 219 F. 3d, at 117, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. And we can find nothing in the statute that requires more "separateness" than that. Cf. McCullough v. Suter, 757 F.2d 142, 144 (CA7 1985) (finding either formal or practical separateness sufficient to be distinct under § 1962(c)). Linguistically speaking, an employee who conducts the affairs of a corporation through illegal acts comes within the terms of a statute that forbids any "person" unlawfully to conduct an "enterprise," particularly when the statute explicitly defines "person" to include "any individual . . . capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation." 18 U.S. C. §§ 1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs. See United States v. Bestfoods, 524 U.S. 51, 61-62 (1998); Burnet v. Clark, 287 U.S. 410, 415 (1932); 1 W. Fletcher, Cyclopedia of the Law of Private Corporations §§ 7, 14 (rev. ed. 1999). *164 We note that the Second Circuit relied on earlier Circuit precedent for its decision. But that precedent involved quite different circumstances which are not presented here. This case concerns a claim that a corporate employee is the "person" and the corporation is the "enterprise." It is natural to speak of a corporate employee as a "person employed by" the corporation. § 1962(c). The earlier Second Circuit precedent concerned a claim that a corporation was the "person" and the corporation, together with all its employees and agents, were the "enterprise." See Riverwoods Chappaqua Corp. v. Marine Midland Bank, N. A., 30 F.3d 339, 344 (1994) (affirming dismissal of complaint). It is less natural to speak of a corporation as "employed by" or "associated with" this latter oddly constructed entity. And the Second Circuit's other precedent also involved significantly different allegations compared with the instant case. See Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 89 (1999) (affirming dismissal where plaintiff alleged that same bank was both "person" and "enterprise"), cert. denied, 528 U.S. 1188 (2000); Discon, Inc. v. NYNEX Corp., 93 F.3d 1055, 1064 (1996) (involving complaint alleging that corporate subsidiaries were "persons" and subsidiaries, taken together as parent, were "enterprise"), vacated on other grounds, 525 U.S. 128 (1998); Bennett, supra, at 315, and n. 2 (same as Anatian ). We do not here consider the merits of these cases, and note only their distinction from the instant case. Further, to apply the RICO statute in present circumstances is consistent with the statute's basic purposes as this Court has defined them. The Court has held that RICO both protects a legitimate "enterprise" from those who would use unlawful acts to victimize it, United States v. Turkette, 452 U.S. 576, 591 (1981), and also protects the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which "unlawful . . . activity is committed," National Organization for Women, Inc., supra, at 259. A corporate *165 employee who conducts the corporation's affairs through an unlawful RICO "pattern . . . of activity," § 1962(c), uses that corporation as a "vehicle" whether he is, or is not, itssole owner. Conversely, the appellate court's critical legal distinction— between employees acting within the scope of corporate authority and those acting outside that authority—is inconsistent with a basic statutory purpose. Cf. Reves, supra, at 184 (stating that an enterprise is "`operated,' " within § 1962(c)'s meaning, "not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management " (emphasis added)). It would immunize from RICO liability many of those at whom this Court has said RICO directly aims—e. g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the purposes of that enterprise, act within the scope of their authority. Cf. Turkette, supra, at 581 (Congress "did nothing to indicate that an enterprise consisting of a group of individuals was not covered by RICO if the purpose of the enterprise was exclusively criminal"). Finally, we have found nothing in the statute's history that significantly favors an alternative interpretation. That history not only refers frequently to the importance of undermining organized crime's influence upon legitimate businesses but also refers to the need to protect the public from those who would run "organization[s] in a manner detrimental to the public interest." S. Rep. No. 91-617, at 82. This latter purpose, as we have said, invites the legal principle we endorse, namely, that in present circumstances the statute requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation) that is present here. In reply, King argues that the lower court's rule is consistent with (1) the principle that a corporation acts only through its directors, officers, and agents, 1 Fletcher, supra, § 30, (2) the principle that a corporation should not be liable *166 for the criminal acts of its employees where Congress so intends, Brief for Respondents 20-21, and (3) the Sherman Act principle limiting liability under 15 U.S. C. § 1 by excluding "from unlawful combinations or conspiracies the activities of a single firm," Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 769-770, n. 15 (1984). The alternative that we endorse, however, is no less consistent with these principles. It does not deny that a corporation acts through its employees; it says only that the corporation and its employees are not legally identical. It does not assert that ordinary respondeat superior principles make a corporation legally liable under RICO for the criminal acts of its employees; that is a matter of congressional intent not before us. See, e. g., Gasoline Sales, Inc., 39 F. 3d, at 73 (holding that corporation cannot be "vicariously liable" for § 1962(c) violations committed by its vice president). Neither is it inconsistent with antitrust law's intracorporate conspiracy doctrine; that doctrine turns on specific antitrust objectives. See Copperweld Corp., supra, at 770-771. Rather, we hold simply that the need for two distinct entities is satisfied; hence, the RICO provision before us applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner—whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. For these reasons, the Court of Appeals' judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U.S. C. 1961 et seq., makes it "unlawful for any person employed by or associated with any enterprise to conduct or participate in the conduct of such enterprise's affairs" through the commission of two or more statutorily defined crimes—which RICO calls "a pattern of racketeering activity." 1962(c). The language suggests, and lower courts have held, that this provision foresees two separate entities, a "person" and a distinct "enterprise." This case focuses upon a person who is the president and sole shareholder of a closely held corporation. The plaintiff claims that the president has conducted the corporation's affairs through the forbidden "pattern," though for present purposes it is conceded that, in doing so, he acted within the scope of his authority as the corporation's employee. In these circumstances, are there two entities, a "person" and a separate "enterprise"? Assuming, as we must given the posture of this case, that the allegations in the complaint are true, we conclude that the "person" and "enterprise" here are distinct and that the RICO provision applies. Petitioner, Cedric Kushner Promotions, Ltd., is a corporation that promotes boxing matches. Petitioner sued Don King, the president and sole shareholder of Don King Productions, a corporation, claiming that King had conducted the boxing-related affairs of Don King Productions in part through a RICO "pattern," i. e., through the alleged commission of at least two instances of fraud and other RICO predicate *161 crimes. The District Court, citing Court of Appeals precedent, dismissed the complaint. Civ. No. 98-6859, And the Court of Appeals affirmed that dismissal. In the appellate court's view, 1962(c) applies only where a plaintiff shows the existence of two separate entities, a "person" and a distinct "enterprise," the affairs of which that "person" improperly conducts. In this instance, "it is undisputed that King was an employee" of the corporation Don King Productions and also "acting within the scope of his authority." Under the Court of Appeals' analysis, King, in a legal sense, was part of, not separate from, the corporation. There was no "person," distinct from the "enterprise," who improperly conducted the "enterprise's affairs." And thus 1962(c) did not apply. Other Circuits, applying 1962(c) in roughly similar circumstances, have reached a contrary conclusion. See, e. g., ; ; Jaguar Cars, ; We granted certiorari to resolve the conflict. We now agree with these Circuits and hold that the Second Circuit's interpretation of 1962(c) is erroneous. We do not quarrel with the basic principle that to establish liability under 1962(c) one must allege and prove the existence of two distinct entities: (1) a "person"; and (2) an "enterprise" that is not simply the same "person" referred to by a different name. The statute's language, read as ordinary English, suggests that principle. The Act says that it applies to "person[s]" who are "employed by or associated with" the "enterprise." 1962(c). In ordinary English one speaks of employing, being employed by, or associating with others, not oneself. See Webster's Third New International Dictionary 132 (defining "associate"); In addition, the Act's purposes are consistent with that principle. Whether the Act seeks to prevent a person from victimizing, say, a small business, S. Rep. No. 91-617, p. 77 (1969), or to prevent a person from using a corporation for criminal purposes, National Organization for Women, the person and the victim, or the person and the tool, are different entities, not the same. The Government reads 1962(c) "to require some distinctness between the RICO defendant and the RICO enterprise." Brief for United States as Amicus Curiae 11. And it says that this requirement is "legally sound and workable." We agree with its assessment, particularly in light of the fact that 12 Courts of Appeals have interpreted the statute as embodying some such distinctness requirement without creating discernible mischief in the administration of RICO. See St. Paul Mercury Ins. ; United (CA11) (en banc), cert. denied, ; cert. denied, ; ; at 646-; Gasoline Sales, ; Confederate Memorial Assn., ; Board of Cty. Comm'rs, San Juan (CA10), cert. denied, ; River City Markets, ; ; Atlas Pile Driving ; cert. denied, ; see also Semiconductor Energy Laboratory cert. *163 denied, Indeed, this Court previously has said that liability "depends on showing that the defendants conducted or participated in the conduct of the `enterprise's affairs,' not just their own affairs." While accepting the "distinctness" principle, we nonetheless disagree with the appellate court's application of that principle to the present circumstances—circumstances in which a corporate employee, "acting within the scope of his authority," 219 F. 3d, allegedly conducts the corporation's affairs in a RICO-forbidden way. The corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status. And we can find nothing in the statute that requires more "separateness" than that. Cf. (finding either formal or practical separateness sufficient to be distinct under 1962(c)). Linguistically speaking, an employee who conducts the affairs of a corporation through illegal acts comes within the terms of a statute that forbids any "person" unlawfully to conduct an "enterprise," particularly when the statute explicitly defines "person" to include "any individual capable of holding a legal or beneficial interest in property," and defines "enterprise" to include a "corporation." 18 U.S. C. 1961(3), (4). And, linguistically speaking, the employee and the corporation are different "persons," even where the employee is the corporation's sole owner. After all, incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs. See United ; ; 1 W. Cyclopedia of the Law of Private Corporations 7, 14 *164 We note that the Second Circuit relied on earlier Circuit precedent for its decision. But that precedent involved quite different circumstances which are not presented here. This case concerns a claim that a corporate employee is the "person" and the corporation is the "enterprise." It is natural to speak of a corporate employee as a "person employed by" the corporation. 1962(c). The earlier Second Circuit precedent concerned a claim that a corporation was the "person" and the corporation, together with all its employees and agents, were the "enterprise." See Riverwoods Chappaqua It is less natural to speak of a corporation as "employed by" or "associated with" this latter oddly constructed entity. And the Second Circuit's other precedent also involved significantly different allegations compared with the instant case. See cert. denied, ; Discon, vacated on other grounds, ; at (same as Anatian ). We do not here consider the merits of these cases, and note only their distinction from the instant case. Further, to apply the RICO statute in present circumstances is consistent with the statute's basic purposes as this Court has defined them. The Court has held that RICO both protects a legitimate "enterprise" from those who would use unlawful acts to victimize it, United and also protects the public from those who would unlawfully use an "enterprise" (whether legitimate or illegitimate) as a "vehicle" through which "unlawful activity is committed," National Organization for Women, at A corporate *165 employee who conducts the corporation's affairs through an unlawful RICO "pattern of activity," 1962(c), uses that corporation as a "vehicle" whether he is, or is not, itssole owner. Conversely, the appellate court's critical legal distinction— between employees acting within the scope of corporate authority and those acting outside that authority—is inconsistent with a basic statutory purpose. Cf. (stating that an enterprise is "`operated,' " within 1962(c)'s meaning, "not just by upper management but also by lower rung participants in the enterprise who are under the direction of upper management " (emphasis added)). It would immunize from RICO liability many of those at whom this Court has said RICO directly aims—e. g., high-ranking individuals in an illegitimate criminal enterprise, who, seeking to further the purposes of that enterprise, act within the scope of their authority. Cf. Turkette, Finally, we have found nothing in the statute's history that significantly favors an alternative interpretation. That history not only refers frequently to the importance of undermining organized crime's influence upon legitimate businesses but also refers to the need to protect the public from those who would run "organization[s] in a manner detrimental to the public interest." S. Rep. No. 91-617, at 82. This latter purpose, as we have said, invites the legal principle we endorse, namely, that in present circumstances the statute requires no more than the formal legal distinction between "person" and "enterprise" (namely, incorporation) that is present here. In reply, King argues that the lower court's rule is consistent with (1) the principle that a corporation acts only through its directors, officers, and agents, 1 30, (2) the principle that a corporation should not be liable *166 for the criminal acts of its employees where Congress so intends, Brief for Respondents 20-21, and (3) the Sherman Act principle limiting liability under 15 U.S. C. 1 by excluding "from unlawful combinations or conspiracies the activities of a single firm," Copperweld The alternative that we endorse, however, is no less consistent with these principles. It does not deny that a corporation acts through its employees; it says only that the corporation and its employees are not legally identical. It does not assert that ordinary respondeat superior principles make a corporation legally liable under RICO for the criminal acts of its employees; that is a matter of congressional intent not before us. See, e. g., Gasoline Sales, (holding that corporation cannot be "vicariously liable" for 1962(c) violations committed by its vice president). Neither is it inconsistent with antitrust law's intracorporate conspiracy doctrine; that doctrine turns on specific antitrust objectives. See Copperweld Rather, we hold simply that the need for two distinct entities is satisfied; hence, the RICO provision before us applies when a corporate employee unlawfully conducts the affairs of the corporation of which he is the sole owner—whether he conducts those affairs within the scope, or beyond the scope, of corporate authority. For these reasons, the Court of Appeals' judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

majority

Jimenez v. Quarterman

2009-01-13

https://www.courtlistener.com/opinion/145924/jimenez-v-quarterman/

https://www.courtlistener.com/api/rest/v3/clusters/145924/

2008-007

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year time limitation for a state prisoner to file a federal habeas corpus petition. That year runs from the latest of four specified dates. 28 U.S. C. §2244(d)(1). This case involves the date provided by §2244(d)(1)(A), which is “the date on which the judg­ ment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner contends that “the date on which the judgment became final” can be postponed by a state court’s decision during collateral review to grant a defendant the right to file an out-of-time direct appeal. The District Court disagreed, holding instead that the date could not be moved to reflect the out-of-time appeal, and that petitioner’s federal ha­ beas petition was untimely for that reason. The United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. See §2253(c). We now reverse the judgment of the Court of Appeals and remand for 2 JIMENEZ v. QUARTERMAN Opinion of the Court further proceedings consistent with this opinion. I After petitioner was sentenced for burglary in 1995, his attorney filed an appellate brief with the Texas Court of Appeals pursuant to Anders v. California, 386 U.S. 738 (1967), explaining that he was unable to identify any nonfrivolous ground on which to base an appeal.1 He left a copy of the brief and a letter (advising petitioner of his right to file a pro se brief as set forth in Anders, id., at 744) at the county jail where he believed petitioner to be. Petitioner, however, had been transferred to a state facil­ ity and did not receive the delivery. The Texas Court of Appeals dismissed the appeal on September 11, 1996, and served petitioner with notice of the dismissal at the county-jail address that, again, was the wrong address. Petitioner eventually learned that his appeal had been dismissed. He filed an application in state court for a writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann., Art. 11.07 (Vernon 1977), arguing that he was denied his right to a meaningful appeal when he was denied the —————— 1 Petitioner was indicted in August 1991 for felony burglary of a habi­ tation, in violation of Tex. Penal Code Ann. §30.02 (Vernon 1989), enhanced by a prior felony conviction for aggravated assault with a deadly weapon under Tex. Penal Code Ann. §12.42(c) (Vernon 1974). He entered a plea agreement in which he agreed to plead guilty to the burglary and true to the enhancement in exchange for an order of deferred adjudication. In November 1991, the trial court deferred adjudication of the burglary conviction and ordered that petitioner serve five years of deferred-adjudication probation. In March 1995, the State moved to revoke petitioner’s probation based on four alleged violations of the conditions of his probation. At a November 1995 hearing, petitioner admitted to two of the violations. The court then heard testimony with respect to the other two violations and found that petitioner had committed those violations as well. The court revoked petitioner’s deferred-adjudication probation, adjudicated him guilty of the enhanced burglary, and sentenced him to a 43-year term of imprisonment. Cite as: 555 U. S. ____ (2009) 3 Opinion of the Court opportunity to file a pro se brief. The Texas Court of Criminal Appeals agreed and, on September 25, 2002, granted petitioner the right to file an out-of-time appeal: “[Petitioner] is entitled to an out-of-time appeal in cause number CR–91–0528–B in the 119th Judicial District Court of Tom Green County. [Petitioner] is ordered returned to that point in time at which he may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Proce­ dure, all time limits shall be calculated as if the sen­ tence had been imposed on the date that the mandate of this Court issues.” Ex parte Jimenez, No. 74,433 (per curiam), App. 26, 27. Petitioner thereafter filed the out-of-time appeal. His conviction was affirmed. The Texas Court of Criminal Appeals denied discretionary review on October 8, 2003. Time for seeking certiorari review of that decision with this Court expired on January 6, 2004. On December 6, 2004, petitioner filed a second application for a writ of habeas corpus in state court; it was denied on June 29, 2005. Petitioner then filed a federal petition for a writ of habeas corpus on July 19, 2005. To establish the timeli­ ness of his petition, he relied on 28 U.S. C. §2244(d)(1)(A), which provides “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” as the trigger for AEDPA’s 1-year limitations period. Petitioner argued that his judgment thus became final on January 6, 2004,2 when time expired for seeking certiorari review of the decision in his out-of-time appeal. Until that date, petitioner ar­ —————— 2 In the District Court, petitioner contended that this date was Janu­ ary 8, 2004, but petitioner’s time for seeking certiorari review actually expired two days earlier. 4 JIMENEZ v. QUARTERMAN Opinion of the Court gued, direct review of his state-court conviction was not complete. With January 6, 2004, as the start date, petitioner contended that his July 19, 2005, petition was timely because the statute excludes from the 1-year limitations period “[t]he time during which a properly filed applica­ tion for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pend­ ing.” §2244(d)(2). Petitioner had a state habeas applica­ tion pending from December 6, 2004, through June 29, 2005, so less than one year of included time—specifically, 355 days—passed between January 6, 2004, and July 19, 2005. The District Court disagreed and dismissed the federal habeas petition as time barred. In the District Court’s view, the proper start date for AEDPA’s 1-year limitations period was October 11, 1996, when time for seeking discre­ tionary review of the decision in petitioner’s first direct appeal expired. The District Court concluded that it could not take into account the Texas court’s later decision reopening petitioner’s direct appeal because Circuit prece­ dent established that “ ‘AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between.’ ” Order, Civ. Action No. 6:05–CV–05–C (ND Tex., Oct. 23, 2006), App. 75, 90 (quoting Salinas v. Dretke, 354 F.3d 425, 429 (CA5 2004)). Therefore, the District Court reasoned, the limitations period began on October 11, 1996, and ended on October 11, 1997, because petitioner had not sought any state or federal collateral review by that date. The Court of Appeals denied petitioner’s request for a certificate of appealability, finding that he had “failed to demonstrate that reasonable jurists would debate the correctness of the district court’s conclusion that the §2254 petition is time-barred.” Order, No. 06–11240, (May 25, Cite as: 555 U. S. ____ (2009) 5 Opinion of the Court 2007), App. 124, 125. We granted certiorari, 552 U. S. ___ (2008), and now reverse and remand for further proceedings.3 II As with any question of statutory interpretation, our analysis begins with the plain language of the statute. Lamie v. United States Trustee, 540 U.S. 526, 534 (2004). It is well established that, when the statutory language is plain, we must enforce it according to its terms. See, e.g., Dodd v. United States, 545 U.S. 353, 359 (2005); Lamie, supra, at 534; Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000); Caminetti v. United States, 242 U.S. 470, 485 (1917). The parties agree that the statutory provision that determines the timeliness of petitioner’s habeas petition is 28 U.S. C. §2244(d)(1)(A). That subsection defines the starting date for purposes of the 1-year AEDPA limita­ tions period as “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” The only disputed question before us is whether the date on which direct review became “final” under the statute is October 11, 1996, when petitioner’s conviction initially became final, —————— 3 We do not decide whether petitioner is entitled to a certificate of appealability on remand because we are presented solely with the Court of Appeals’ decision on the timeliness of the petition under 28 U.S. C. §2244(d). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying consti­ tutional claim,” as here, a certificate of appealability should issue only when the prisoner shows both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added). We make no judgment regarding the merits of petitioner’s federal constitutional claims. 6 JIMENEZ v. QUARTERMAN Opinion of the Court or January 6, 2004, when the out-of-time appeal granted by the Texas Court of Criminal Appeals became final. We agree with petitioner that, under the plain meaning of the statutory text, the latter date controls. Finality is a concept that has been “variously defined; like many legal terms, its precise meaning depends on context.” Clay v. United States, 537 U.S. 522, 527 (2003). But here, the finality of a state-court judgment is ex­ pressly defined by statute as “the conclusion of direct review or the expiration of the time for seeking such re­ view.” §2244(d)(1)(A). With respect to postconviction relief for federal prison­ ers, this Court has held that the conclusion of direct re­ view occurs when “this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari.” Id., at 527, 528–532 (interpreting §2255, ¶6(1)). We have further held that if the federal prisoner chooses not to seek direct review in this Court, then the conviction becomes final when “the time for filing a certio­ rari petition expires.” Id., at 527. In construing the simi­ lar language of §2244(d)(1)(A), we see no reason to depart from this settled understanding, which comports with the most natural reading of the statutory text. See Lawrence v. Florida, 549 U.S. 327, 332–335 (2007) (citing Clay, supra, at 528, n. 3). As a result, direct review cannot conclude for purposes of §2244(d)(1)(A) until the “avail­ ability of direct appeal to the state courts,” Caspari v. Bohlen, 510 U.S. 383, 390 (1994), and to this Court, Law rence, supra, at 332–333, has been exhausted. Until that time, the “process of direct review” has not “com[e] to an end” and “a presumption of finality and legality” cannot yet have “attache[d] to the conviction and sentence,” Bare foot v. Estelle, 463 U.S. 880, 887 (1983). Under the statutory definition, therefore, once the Texas Court of Criminal Appeals reopened direct review of peti­ Cite as: 555 U. S. ____ (2009) 7 Opinion of the Court tioner’s conviction on September 25, 2002,4 petitioner’s conviction was no longer final for purposes of §2244(d)(1)(A). Rather, the order “granting an out-of-time appeal restore[d] the pendency of the direct appeal,” Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997), and petitioner’s conviction was again capable of modifica­ tion through direct appeal to the state courts and to this Court on certiorari review. Therefore, it was not until January 6, 2004, when time for seeking certiorari review in this Court expired, that petitioner’s conviction became “final” through “the conclusion of direct review or the expiration of the time for seeking such review” under §2244(d)(1)(A). Respondent objects, observing that the Court has previ­ ously acknowledged Congress’ intent “to advance the finality of criminal convictions” with the “tight time line” of §2244(d)(1)(A), Mayle v. Felix, 545 U.S. 644, 662 (2005), which “pinpoint[s]” a uniform federal date of finality that does not “vary from State to State,” Clay, supra, at 530, 531. In respondent’s view, permitting a state court to reopen direct review, and thus reset AEDPA’s 1-year limitations period, undermines the policy of finality that Congress established in §2244(d)(1). But it is the plain language of §2244(d)(1) that pinpoints the uniform date of finality set by Congress. And that language points to the —————— 4 We do not here decide whether petitioner could have sought timely federal habeas relief between October 11, 1997, when the 1-year limita­ tions period initially expired, and September 25, 2002, when the state court ordered that his direct review be reopened. Were such a petition timely, though, it would not be through application of §2244(d)(1)(A) because we have previously held that the possibility that a state court may reopen direct review “does not render convictions and sentences that are no longer subject to direct review nonfinal,” Beard v. Banks, 542 U.S. 406, 412 (2004). We do not depart from that rule here; we merely hold that, where a state court has in fact reopened direct review, the conviction is rendered nonfinal for purposes of §2244(d)(1)(A) during the pendency of the reopened appeal. 8 JIMENEZ v. QUARTERMAN Opinion of the Court conclusion of direct appellate proceedings in state court. The statute thus carries out “AEDPA’s goal of promoting ‘comity, finality, and federalism’ by giving state courts ‘the first opportunity to review [the] claim,’ and to ‘correct’ any ‘constitutional violation in the first instance.’ ” Carey v. Saffold, 536 U.S. 214, 220 (2002) (quoting Williams v. Taylor, 529 U.S. 420, 436 (2000); O’Sullivan v. Boerckel, 526 U.S. 838, 844–845 (1999); citation omitted). The statute requires a federal court, presented with an indi­ vidual’s first petition for habeas relief, to make use of the date on which the entirety of the state direct appellate review process was completed. Here, that date was Janu­ ary 6, 2004. * * * Our decision today is a narrow one. We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of §2244(d)(1)(A). In such a case, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that ap­ peal. Because the Court of Appeals denied a certificate of appealability based on a contrary reading of the statute, we reverse the judgment and remand the case for further proceedings consistent with this opinion. It is so ordered

The Antiterrorism and Effective Death Penalty Act of 199 (AEDPA) establishes a 1-year time limitation for a state prisoner to file a federal habeas corpus petition. That year runs from the latest of four specified dates. 28 U.S. C. This case involves the date provided by which is “the date on which the judg­ ment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Petitioner contends that “the date on which the judgment became final” can be postponed by a state court’s decision during collateral review to grant a defendant the right to file an out-of-time direct appeal. The District Court disagreed, holding instead that the date could not be moved to reflect the out-of-time appeal, and that petitioner’s federal ha­ beas petition was untimely for that reason. The United States Court of Appeals for the Fifth Circuit denied a certificate of appealability. See We now reverse the judgment of the Court of Appeals and remand for 2 JIMENEZ v. QUARTERMAN Opinion of the Court further proceedings consistent with this opinion. I After petitioner was sentenced for burglary in 1995, his attorney filed an appellate brief with the Texas Court of Appeals pursuant to (197), explaining that he was unable to identify any nonfrivolous ground on which to base an appeal.1 He left a copy of the brief and a letter (advising petitioner of his right to file a pro se brief as set forth in Anders, ) at the county jail where he believed petitioner to be. Petitioner, however, had been transferred to a state facil­ ity and did not receive the delivery. The Texas Court of Appeals dismissed the appeal on September 11, 199, and served petitioner with notice of the dismissal at the county-jail address that, again, was the wrong address. Petitioner eventually learned that his appeal had been dismissed. He filed an application in state court for a writ of habeas corpus pursuant to Tex. Code Crim. Proc. Ann., Art. 11.07 (Vernon 1977), arguing that he was denied his right to a meaningful appeal when he was denied the —————— 1 Petitioner was indicted in August 1991 for felony burglary of a habi­ tation, in violation of (Vernon 1989), enhanced by a prior felony conviction for aggravated assault with a deadly weapon under (c) (Vernon 1974). He entered a plea agreement in which he agreed to plead guilty to the burglary and true to the enhancement in exchange for an order of deferred adjudication. In November 1991, the trial court deferred adjudication of the burglary conviction and ordered that petitioner serve five years of deferred-adjudication probation. In March 1995, the State moved to revoke petitioner’s probation based on four alleged violations of the conditions of his probation. At a November 1995 hearing, petitioner admitted to two of the violations. The court then heard testimony with respect to the other two violations and found that petitioner had committed those violations as well. The court revoked petitioner’s deferred-adjudication probation, adjudicated him guilty of the enhanced burglary, and sentenced him to a 43-year term of imprisonment. Cite as: 555 U. S. (2009) 3 Opinion of the Court opportunity to file a pro se brief. The Texas Court of Criminal Appeals agreed and, on September 25, 2002, granted petitioner the right to file an out-of-time appeal: “[Petitioner] is entitled to an out-of-time appeal in cause number CR–91–0528–B in the 119th Judicial District Court of Tom Green County. [Petitioner] is ordered returned to that point in time at which he may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Proce­ dure, all time limits shall be calculated as if the sen­ tence had been imposed on the date that the mandate of this Court issues.” Ex parte Jimenez, No. 74,433 (per curiam), App. 2, 27. Petitioner thereafter filed the out-of-time appeal. His conviction was affirmed. The Texas Court of Criminal Appeals denied discretionary review on October 8, 2003. Time for seeking certiorari review of that decision with this Court expired on January On December petitioner filed a second application for a writ of habeas corpus in state court; it was denied on June 29, 2005. Petitioner then filed a federal petition for a writ of habeas corpus on July 19, 2005. To establish the timeli­ ness of his petition, he relied on 28 U.S. C. which provides “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” as the trigger for AEDPA’s 1-year limitations period. Petitioner argued that his judgment thus became final on January2 when time expired for seeking certiorari review of the decision in his out-of-time appeal. Until that date, petitioner ar­ —————— 2 In the District Court, petitioner contended that this date was Janu­ ary 8, but petitioner’s time for seeking certiorari review actually expired two days earlier. 4 JIMENEZ v. QUARTERMAN Opinion of the Court gued, direct review of his state-court conviction was not complete. With January as the start date, petitioner contended that his July 19, 2005, petition was timely because the statute excludes from the 1-year limitations period “[t]he time during which a properly filed applica­ tion for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pend­ ing.” Petitioner had a state habeas applica­ tion pending from December through June 29, 2005, so less than one year of included time—specifically, 355 days—passed between January and July 19, 2005. The District Court disagreed and dismissed the federal habeas petition as time barred. In the District Court’s view, the proper start date for AEDPA’s 1-year limitations period was October 11, 199, when time for seeking discre­ tionary review of the decision in petitioner’s first direct appeal expired. The District Court concluded that it could not take into account the Texas court’s later decision reopening petitioner’s direct appeal because Circuit prece­ dent established that “ ‘AEDPA provides for only a linear limitations period, one that starts and ends on specific dates, with only the possibility that tolling will expand the period in between.’ ” Order, Civ. Action No. :05–CV–05–C (ND Tex., Oct. 23, 200), App. 75, 90 ). Therefore, the District Court reasoned, the limitations period began on October 11, 199, and ended on October 11, 1997, because petitioner had not sought any state or federal collateral review by that date. The Court of Appeals denied petitioner’s request for a certificate of appealability, finding that he had “failed to demonstrate that reasonable jurists would debate the correctness of the district court’s conclusion that the petition is time-barred.” Order, No. 0–11240, (May 25, Cite as: 555 U. S. (2009) 5 Opinion of the Court 2007), App. 124, 125. We granted certiorari, 552 U. S. (2008), and now reverse and remand for further proceedings.3 II As with any question of statutory interpretation, our analysis begins with the plain language of the statute. It is well established that, when the statutory language is plain, we must enforce it according to its terms. See, e.g., ; Lamie, at ; Hartford Underwriters Ins. ; Caminetti v. United States, The parties agree that the statutory provision that determines the timeliness of petitioner’s habeas petition is 28 U.S. C. That subsection defines the starting date for purposes of the 1-year AEDPA limita­ tions period as “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” The only disputed question before us is whether the date on which direct review became “final” under the statute is October 11, 199, when petitioner’s conviction initially became final, —————— 3 We do not decide whether petitioner is entitled to a certificate of appealability on remand because we are presented solely with the Court of Appeals’ decision on the timeliness of the petition under 28 U.S. C. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying consti­ tutional claim,” as here, a certificate of appealability should issue only when the prisoner shows both “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, We make no judgment regarding the merits of petitioner’s federal constitutional claims. JIMENEZ v. QUARTERMAN Opinion of the Court or January when the out-of-time appeal granted by the Texas Court of Criminal Appeals became final. We agree with petitioner that, under the plain meaning of the statutory text, the latter date controls. Finality is a concept that has been “variously defined; like many legal terms, its precise meaning depends on context.” But here, the finality of a state-court judgment is ex­ pressly defined by statute as “the conclusion of direct review or the expiration of the time for seeking such re­ view.” With respect to postconviction relief for federal prison­ ers, this Court has held that the conclusion of direct re­ view occurs when “this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari.” at 528–532 (interpreting ¶(1)). We have further held that if the federal prisoner chooses not to seek direct review in this Court, then the conviction becomes final when “the time for filing a certio­ rari petition expires.” at In construing the simi­ lar language of we see no reason to depart from this settled understanding, which comports with the most natural reading of the statutory text. See Law v. Florida, (citing ). As a result, direct review cannot conclude for purposes of until the “avail­ ability of direct appeal to the state courts,” Caspari v. Bohlen, and to this Court, Law at 332–333, has been exhausted. Until that time, the “process of direct review” has not “com[e] to an end” and “a presumption of finality and legality” cannot yet have “attache[d] to the conviction and sentence,” Bare 43 U.S. 880, Under the statutory definition, therefore, once the Texas Court of Criminal Appeals reopened direct review of peti­ Cite as: 555 U. S. (2009) 7 Opinion of the Court tioner’s conviction on September 25, 2002,4 petitioner’s conviction was no longer final for purposes of Rather, the order “granting an out-of-time appeal restore[d] the pendency of the direct appeal,” Ex parte Torres, 943 S.W.2d 49, and petitioner’s conviction was again capable of modifica­ tion through direct appeal to the state courts and to this Court on certiorari review. Therefore, it was not until January when time for seeking certiorari review in this Court expired, that petitioner’s conviction became “final” through “the conclusion of direct review or the expiration of the time for seeking such review” under Respondent objects, observing that the Court has previ­ ously acknowledged Congress’ intent “to advance the finality of criminal convictions” with the “tight time line” of 545 U.S. 44, 2 which “pinpoint[s]” a uniform federal date of finality that does not “vary from State to State,” 531. In respondent’s view, permitting a state court to reopen direct review, and thus reset AEDPA’s 1-year limitations period, undermines the policy of finality that Congress established in But it is the plain language of that pinpoints the uniform date of finality set by Congress. And that language points to the —————— 4 We do not here decide whether petitioner could have sought timely federal habeas relief between October 11, 1997, when the 1-year limita­ tions period initially expired, and September 25, 2002, when the state court ordered that his direct review be reopened. Were such a petition timely, though, it would not be through application of because we have previously held that the possibility that a state court may reopen direct review “does not render convictions and sentences that are no longer subject to direct review nonfinal,” 542 U.S. 40, We do not depart from that rule here; we merely hold that, where a state court has in fact reopened direct review, the conviction is rendered nonfinal for purposes of during the pendency of the reopened appeal. 8 JIMENEZ v. QUARTERMAN Opinion of the Court conclusion of direct appellate proceedings in state court. The statute thus carries out “AEDPA’s goal of promoting ‘comity, finality, and federalism’ by giving state courts ‘the first opportunity to review [the] claim,’ and to ‘correct’ any ‘constitutional violation in the first instance.’ ” Carey v. Saffold, 53 U.S. 214, ; 52 U.S. 838, ; citation omitted). The statute requires a federal court, presented with an indi­ vidual’s first petition for habeas relief, to make use of the date on which the entirety of the state direct appellate review process was completed. Here, that date was Janu­ ary * * * Our decision today is a narrow one. We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet “final” for purposes of In such a case, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that ap­ peal. Because the Court of Appeals denied a certificate of appealability based on a contrary reading of the statute, we reverse the judgment and remand the case for further proceedings consistent with this opinion. It is so ordered

Justice O'Connor

majority

Johnson v. California

2005-02-23

https://www.courtlistener.com/opinion/137748/johnson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/137748/

2004-023

The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility. We consider whether strict scrutiny is the proper standard of review for an equal protection challenge to that policy. I A CDC institutions house all new male inmates and all male inmates transferred from other state facilities in reception centers for up to 60 days upon their arrival. During that time, prison officials evaluate the inmates to determine their ultimate placement. Double-cell assignments in the reception centers are based on a number of factors, predominantly race. In fact, the CDC has admitted that the chances of an inmate being assigned a cellmate of another race are "`[p]retty close'" to zero percent. App. to Pet. for Cert. 3a. The CDC further subdivides prisoners within each racial group. Thus, Japanese-Americans are housed separately from Chinese-Americans, and Northern California Hispanics are separated from Southern California Hispanics. The CDC's asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs. Brief for Respondents 1-6. It cites numerous incidents of racial violence in CDC facilities and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. Id., at 2. The CDC also notes that prison-gang culture is violent and murderous. Id., at 3. An associate warden testified *503 that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the yard. App. 215a. Other prison officials also expressed their belief that violence and conflict would result if prisoners were not segregated. See, e. g., id., at 305a-306a. The CDC claims that it must therefore segregate all inmates while it determines whether they pose a danger to others. See Brief for Respondents 29. With the exception of the double cells in reception areas, the rest of the state prison facilities—dining areas, yards, and cells—are fully integrated. After the initial 60-day period, prisoners are allowed to choose their own cellmates. The CDC usually grants inmate requests to be housed together, unless there are security reasons for denying them. B Garrison Johnson is an African-American inmate in the custody of the CDC. He has been incarcerated since 1987 and, during that time, has been housed at a number of California prison facilities. Fourth Amended Complaint 3, Record, Doc. No. 78. Upon his arrival at Folsom prison in 1987, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another African-American inmate. See ibid. Johnson filed a complaint pro se in the United States District Court for the Central District of California on February 24, 1995, alleging that the CDC's reception-center housing policy violated his right to equal protection under the Fourteenth Amendment by assigning him cellmates on the basis of his race. He alleged that, from 1987 to 1991, former CDC Director James Rowland instituted and enforced an unconstitutional policy of housing inmates according to race. Second Amended Complaint 2-4, Record, Doc. No. 21. Johnson made the same allegations against former Director James Gomez for the period from 1991 until the filing of his complaint. Ibid. The District Court dismissed his complaint *504 for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed and remanded, holding that Johnson had stated a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Johnson v. California, 207 F.3d 650, 655 (2000). On remand, Johnson was appointed counsel and granted leave to amend his complaint. On July 5, 2000, he filed his Fourth Amended Complaint. Record, Doc. No. 81. Johnson claimed that the CDC's policy of racially segregating all inmates in reception-center cells violated his rights under the Equal Protection Clause. Johnson sought damages, alleging that former CDC Directors Rowland and Gomez, in their individual capacities, violated his constitutional rights by formulating and implementing the CDC's housing policy. He also sought injunctive relief against former CDC Director Stephen Cambra. Johnson has consistently challenged, and the CDC has consistently defended, the policy as a whole—as it relates to both new inmates and inmates transferred from other facilities. Johnson was first segregated in 1987 as a new inmate when he entered the CDC facility at Folsom. Since 1987, he has been segregated each time he has been transferred to a new facility. Thus, he has been subject to the CDC's policy both as a new inmate and as an inmate transferred from one facility to another. After discovery, the parties moved for summary judgment. The District Court granted summary judgment to the defendants on grounds that they were entitled to qualified immunity because their conduct was not clearly unconstitutional. The Court of Appeals for the Ninth Circuit affirmed. 321 F.3d 791 (2003). It held that the constitutionality of the CDC's policy should be reviewed under the deferential standard we articulated in Turner v. Safley, 482 U.S. 78 (1987)—not strict scrutiny. 321 F.3d, at 798-799. Applying Turner, it held that Johnson had the burden of refuting the "common-sense connection" between the policy and *505 prison violence. 321 F.3d, at 802. Though it believed this was a "close case," id., at 798, the Court of Appeals concluded that the policy survived Turner's deferential standard, 321 F.3d, at 807. The Court of Appeals denied Johnson's petition for rehearing en banc. Judge Ferguson, joined by three others, dissented on grounds that "[t]he panel's decision ignore[d] the Supreme Court's repeated and unequivocal command that all racial classifications imposed by the government must be analyzed by a reviewing court under strict scrutiny, and fail[ed] to recognize that [the] Turner analysis is inapplicable in cases, such as this one, in which the right asserted is not inconsistent with legitimate penological objectives." 336 F.3d 1117 (2003) (per curiam) (internal quotation marks and citations omitted). We granted certiorari to decide which standard of review applies. 540 U.S. 1217 (2004). II A We have held that "all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny." Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (emphasis added). Under strict scrutiny, the government has the burden of proving that racial classifications "are narrowly tailored measures that further compelling governmental interests." Ibid. We have insisted on strict scrutiny in every context, even for so-called "benign" racial classifications, such as race-conscious university admissions policies, see Grutter v. Bollinger, 539 U.S. 306, 326 (2003), race-based preferences in government contracts, see Adarand, supra, at 226, and race-based districting intended to improve minority representation, see Shaw v. Reno, 509 U.S. 630, 650 (1993). The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and *506 again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining ... what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We therefore apply strict scrutiny to all racial classifications to "`smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." Ibid.[1] The CDC claims that its policy should be exempt from our categorical rule because it is "neutral" — that is, it "neither benefits nor burdens one group or individual more than any other group or individual." Brief for Respondents 16. In other words, strict scrutiny should not apply because all prisoners are "equally" segregated. The CDC's argument ignores our repeated command that "racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally." Shaw, supra, at 651. Indeed, we rejected the notion that separate can ever be equal — or "neutral" — 50 years ago in Brown v. Board of Education, 347 U.S. 483 (1954), and we refuse to resurrect it today. See also Powers v. Ohio, 499 U.S. 400, 410 (1991) (rejecting the argument that race-based peremptory challenges were permissible because they applied equally to white and black jurors and holding that "[i]t is axiomatic that racial classifications do not become legitimate on the assumption that all persons suffer them in equal degree"). We have previously applied a heightened standard of review in evaluating racial segregation in prisons. In Lee v. *507 Washington, 390 U.S. 333 (1968) (per curiam), we upheld a three-judge court's decision striking down Alabama's policy of segregation in its prisons. Id., at 333-334. Alabama had argued that desegregation would undermine prison security and discipline, id., at 334, but we rejected that contention. Three Justices concurred "to make explicit something that is left to be gathered only by implication from the Court's opinion" — "that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." Ibid. (emphasis added). The concurring Justices emphasized that they were "unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court's firm commitment to the Fourteenth Amendment's prohibition of racial discrimination." Ibid. The need for strict scrutiny is no less important here, where prison officials cite racial violence as the reason for their policy. As we have recognized in the past, racial classifications "threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility." Shaw, supra, at 643 (citing J. A. Croson Co., supra, at 493 (plurality opinion) (emphasis added)). Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates "may exacerbate the very patterns of [violence that it is] said to counteract." Shaw, supra, at 648; see also Trulson & Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prisons, 36 Law & Soc. Rev. 743, 774 (2002) (in a study of prison desegregation, finding that "over [10 years] the rate of violence between inmates segregated by race in double cells surpassed the rate among those *508 racially integrated"). See also Brief for Former State Corrections Officials as Amici Curiae 19 (opinion of former corrections officials from six States that "racial integration of cells tends to diffuse racial tensions and thus diminish interracial violence" and that "a blanket policy of racial segregation of inmates is contrary to sound prison management"). The CDC's policy is unwritten. Although California claimed at oral argument that two other States follow a similar policy, see Tr. of Oral Arg. 30-31, this assertion was unsubstantiated, and we are unable to confirm or deny its accuracy.[2] Virtually all other States and the Federal Government manage their prison systems without reliance on racial segregation. See Brief for United States as Amicus Curiae 24. Federal regulations governing the Federal Bureau of Prisons (BOP) expressly prohibit racial segregation. 28 CFR § 551.90 (2004) ("[BOP] staff shall not discriminate *509 against inmates on the basis of race, religion, national origin, sex, disability, or political belief. This includes the making of administrative decisions and providing access to work, housing and programs"). The United States contends that racial integration actually "leads to less violence in BOP's institutions and better prepares inmates for re-entry into society." Brief for United States as Amicus Curiae 25. Indeed, the United States argues, based on its experience with the BOP, that it is possible to address "concerns of prison security through individualized consideration without the use of racial segregation, unless warranted as a necessary and temporary response to a race riot or other serious threat of race-related violence." Id., at 24. As to transferees, in particular, whom the CDC has already evaluated at least once, it is not clear why more individualized determinations are not possible. Because the CDC's policy is an express racial classification, it is "immediately suspect." Shaw, 509 U. S., at 642; see also Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 485 (1982). We therefore hold that the Court of Appeals erred when it failed to apply strict scrutiny to the CDC's policy and to require the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest. B The CDC invites us to make an exception to the rule that strict scrutiny applies to all racial classifications, and instead to apply the deferential standard of review articulated in Turner v. Safley, 482 U.S. 78 (1987), because its segregation policy applies only in the prison context. We decline the invitation. In Turner, we considered a claim by Missouri prisoners that regulations restricting inmate marriages and inmate-to-inmate correspondence were unconstitutional. Id., at 81. We rejected the prisoners' argument that the regulations should be subject to strict scrutiny, asking instead whether the regulation that burdened the prisoners' *510 fundamental rights was "reasonably related" to "legitimate penological interests." Id., at 89. We have never applied Turner to racial classifications. Turner itself did not involve any racial classification, and it cast no doubt on Lee. We think this unsurprising, as we have applied Turner's reasonable-relationship test only to rights that are "inconsistent with proper incarceration." Overton v. Bazzetta, 539 U.S. 126, 131 (2003); see also Pell v. Procunier, 417 U.S. 817, 822 (1974) ("[A] prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system"). This is because certain privileges and rights must necessarily be limited in the prison context. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) ("`[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system'" (quoting Price v. Johnston, 334 U.S. 266, 285 (1948))). Thus, for example, we have relied on Turner in addressing First Amendment challenges to prison regulations, including restrictions on freedom of association, Overton, supra; limits on inmate correspondence, Shaw v. Murphy, 532 U.S. 223 (2001); restrictions on inmates' access to courts, Lewis v. Casey, 518 U.S. 343 (1996); restrictions on receipt of subscription publications, Thornburgh v. Abbott, 490 U.S. 401 (1989); and work rules limiting prisoners' attendance at religious services, Shabazz, supra. We have also applied Turner to some due process claims, such as involuntary medication of mentally ill prisoners, Washington v. Harper, 494 U.S. 210 (1990); and restrictions on the right to marry, Turner, supra. The right not to be discriminated against based on one's race is not susceptible to the logic of Turner. It is not a right that need necessarily be compromised for the sake of proper prison administration. On the contrary, compliance with the Fourteenth Amendment's ban on racial discrimination *511 is not only consistent with proper prison administration, but also bolsters the legitimacy of the entire criminal justice system. Race discrimination is "especially pernicious in the administration of justice." Rose v. Mitchell, 443 U.S. 545, 555 (1979). And public respect for our system of justice is undermined when the system discriminates based on race. Cf. Batson v. Kentucky, 476 U.S. 79, 99 (1986) ("[P]ublic respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race"). When government officials are permitted to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored, society as a whole suffers. For similar reasons, we have not used Turner to evaluate Eighth Amendment claims of cruel and unusual punishment in prison. We judge violations of that Amendment under the "deliberate indifference" standard, rather than Turner's "reasonably related" standard. See Hope v. Pelzer, 536 U.S. 730, 738 (2002) (asking whether prison officials displayed "`deliberate indifference' to the inmates' health or safety" where an inmate claimed that they violated his rights under the Eighth Amendment (quoting Hudson v. McMillian, 503 U.S. 1, 8 (1992))). This is because the integrity of the criminal justice system depends on full compliance with the Eighth Amendment. See Spain v. Procunier, 600 F.2d 189, 193-194 (CA9 1979) (Kennedy, J.) ("[T]he full protections of the eighth amendment most certainly remain in force [in prison]. The whole point of the amendment is to protect persons convicted of crimes.... Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary"). In the prison context, when the government's power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination. *512 Granting the CDC an exemption from the rule that strict scrutiny applies to all racial classifications would undermine our "unceasing efforts to eradicate racial prejudice from our criminal justice system." McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (internal quotation marks omitted). The CDC argues that "[d]eference to the particular expertise of prison officials in the difficult task of managing daily prison operations" requires a more relaxed standard of review for its segregation policy. Brief for Respondents 18. But we have refused to defer to state officials' judgments on race in other areas where those officials traditionally exercise substantial discretion. For example, we have held that, despite the broad discretion given to prosecutors when they use their peremptory challenges, using those challenges to strike jurors on the basis of their race is impermissible. See Batson, supra, at 89-96. Similarly, in the redistricting context, despite the traditional deference given to States when they design their electoral districts, we have subjected redistricting plans to strict scrutiny when States draw district lines based predominantly on race. Compare generally Vieth v. Jubelirer, 541 U.S. 267 (2004) (partisan gerrymandering), with Shaw v. Reno, 509 U.S. 630 (1993) (racial gerrymandering). We did not relax the standard of review for racial classifications in prison in Lee, and we refuse to do so today. Rather, we explicitly reaffirm what we implicitly held in Lee: The "necessities of prison security and discipline," 390 U.S., at 334, are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities. See Grutter, 539 U. S., at 353 (THOMAS, J., concurring in part and dissenting in part) (citing Lee for the principle that "protecting prisoners from violence might justify narrowly tailored racial discrimination"); J. A. Croson Co., 488 U. S., at 521 (SCALIA, J., concurring in judgment) (citing Lee for the proposition that "only a social emergency rising to the level of imminent danger to life and limb — for *513 example, a prison race riot, requiring temporary segregation of inmates — can justify an exception to the principle embodied in the Fourteenth Amendment that `[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens'" (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting))); see also Pell, 417 U. S., at 823 ("[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves"). JUSTICE THOMAS would subject race-based policies in prisons to Turner's deferential standard of review because, in his view, judgments about whether race-based policies are necessary "are better left in the first instance to the officials who run our Nation's prisons." Post, at 542. But Turner is too lenient a standard to ferret out invidious uses of race. Turner requires only that the policy be "reasonably related" to "legitimate penological interests." 482 U.S., at 89. Turner would allow prison officials to use race-based policies even when there are race-neutral means to accomplish the same goal, and even when the race-based policy does not in practice advance that goal. See, e. g., 321 F. 3d, at 803 (case below) (reasoning that, under Turner, the Court of Appeals did "not have to agree that the policy actually advances the CDC's legitimate interest, but only [that] `defendants might reasonably have thought that the policy would advance its interests'"). See also Turner, supra, at 90 (warning that Turner is not a "least restrictive alternative test" (internal quotation marks omitted)). For example, in JUSTICE THOMAS' world, prison officials could segregate visiting areas on the ground that racial mixing would cause unrest in the racially charged prison atmosphere. Under Turner, "[t]he prisoner would have to prove that there would not be a riot[.] [But] [i]t is certainly `plausible' that such a riot could ensue: our society, as well as our prisons, contains enough racists that almost any interracial interaction could potentially lead to conflict." 336 F. 3d, at *514 1120 (case below) (Ferguson, J., dissenting from denial of rehearing en banc). Indeed, under JUSTICE THOMAS' view, there is no obvious limit to permissible segregation in prisons. It is not readily apparent why, if segregation in reception centers is justified, segregation in the dining halls, yards, and general housing areas is not also permissible. Any of these areas could be the potential site of racial violence. If JUSTICE THOMAS' approach were to carry the day, even the blanket segregation policy struck down in Lee might stand a chance of survival if prison officials simply asserted that it was necessary to prison management. We therefore reject the Turner standard for racial classifications in prisons because it would make rank discrimination too easy to defend. The CDC protests that strict scrutiny will handcuff prison administrators and render them unable to address legitimate problems of race-based violence in prisons. See also post, at 531-532, 546-547 (THOMAS, J., dissenting). Not so. Strict scrutiny is not "strict in theory, but fatal in fact." Adarand, 515 U. S., at 237 (internal quotation marks omitted); Grutter, 539 U. S., at 326-327 ("Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it"). Strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety. Prison administrators, however, will have to demonstrate that any race-based policies are narrowly tailored to that end. See id., at 327 ("When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied").[3] *515 The fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny." Adarand, supra, at 229-230. At this juncture, no such determination has been made. On remand, the CDC will have the burden of demonstrating that its policy is narrowly tailored with regard to new inmates as well as transferees. Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts. Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account. III We do not decide whether the CDC's policy violates the Equal Protection Clause. We hold only that strict scrutiny is the proper standard of review and remand the case to allow the Court of Appeals for the Ninth Circuit, or the District Court, to apply it in the first instance. See Consolidated Rail Corporation v. Gottshall, 512 U.S. 532, 557-558 (1994) (reversing and remanding for the lower court to apply the correct legal standard in the first instance); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-1032 (1992) (same). 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. THE CHIEF JUSTICE took no part in the decision of this case.

The California Department of Corrections (CDC) has an unwritten policy of racially segregating prisoners in double cells in reception centers for up to 60 days each time they enter a new correctional facility. We consider whether strict scrutiny is the proper of review for an equal protection challenge to that policy. I A CDC institutions house all new male inmates and all male inmates transferred from other state facilities in reception centers for up to 60 days upon their arrival. During that time, prison officials evaluate the inmates to determine their ultimate placement. Double-cell assignments in the reception centers are based on a number of factors, predominantly race. In fact, the CDC has admitted that the chances of an inmate being assigned a cellmate of another race are "`[p]retty close'" to zero percent. App. to Pet. for Cert. 3a. The CDC further subdivides prisoners within each racial group. Thus, Japanese-Americans are housed separately from Chinese-Americans, and Northern California Hispanics are separated from Southern California Hispanics. The CDC's asserted rationale for this practice is that it is necessary to prevent violence caused by racial gangs. Brief for Respondents 1-6. It cites numerous incidents of racial violence in CDC facilities and identifies five major prison gangs in the State: Mexican Mafia, Nuestra Familia, Black Guerilla Family, Aryan Brotherhood, and Nazi Low Riders. The CDC also notes that prison-gang culture is violent and murderous. An associate warden testified *503 that if race were not considered in making initial housing assignments, she is certain there would be racial conflict in the cells and in the yard. App. 215a. Other prison officials also expressed their belief that violence and conflict would result if prisoners were not segregated. See, e. 05a-306a. The CDC claims that it must therefore segregate all inmates while it determines whether they pose a danger to others. See Brief for Respondents 29. With the exception of the double cells in reception areas, the rest of the state prison facilities—dining areas, yards, and cells—are fully integrated. After the initial 60-day period, prisoners are allowed to choose their own cellmates. The CDC usually grants inmate requests to be housed together, unless there are security reasons for denying them. B Garrison Johnson is an African-American inmate in the custody of the CDC. He has been incarcerated since 197 and, during that time, has been housed at a number of California prison facilities. Fourth Amended Complaint 3, Record, Doc. No. 7. Upon his arrival at Folsom prison in 197, and each time he was transferred to a new facility thereafter, Johnson was double-celled with another African-American inmate. See Johnson filed a complaint pro se in the United States District Court for the Central District of California on February 24, 15, alleging that the CDC's reception-center housing policy violated his right to equal protection under the Fourteenth Amendment by assigning him cellmates on the basis of his race. He alleged that, from 197 to 11, former CDC Director James Rowland instituted and enforced an unconstitutional policy of housing inmates according to race. Second Amended Complaint 2-4, Record, Doc. No. 21. Johnson made the same allegations against former Director James Gomez for the period from 11 until the filing of his complaint. The District Court dismissed his complaint *504 for failure to state a claim. The Court of Appeals for the Ninth Circuit reversed and remanded, holding that Johnson had stated a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. On remand, Johnson was appointed counsel and granted leave to amend his complaint. On July 5, he filed his Fourth Amended Complaint. Record, Doc. No. 1. Johnson claimed that the CDC's policy of racially segregating all inmates in reception-center cells violated his rights under the Equal Protection Clause. Johnson sought damages, alleging that former CDC Directors Rowland and Gomez, in their individual capacities, violated his constitutional rights by formulating and implementing the CDC's housing policy. He also sought injunctive relief against former CDC Director Stephen Cambra. Johnson has consistently challenged, and the CDC has consistently defended, the policy as a whole—as it relates to both new inmates and inmates transferred from other facilities. Johnson was first segregated in 197 as a new inmate when he entered the CDC facility at Folsom. Since 197, he has been segregated each time he has been transferred to a new facility. Thus, he has been subject to the CDC's policy both as a new inmate and as an inmate transferred from one facility to another. After discovery, the parties moved for summary judgment. The District Court granted summary judgment to the defendants on grounds that they were entitled to qualified immunity because their conduct was not clearly unconstitutional. The Court of Appeals for the Ninth Circuit affirmed. It held that the constitutionality of the CDC's policy should be reviewed under the deferential we articulated in —not strict -7. Applying it held that Johnson had the burden of refuting the "common-sense connection" between the policy and *505 prison Though it believed this was a "close case," the Court of Appeals concluded that the policy survived 's deferential The Court of Appeals denied Johnson's petition for rehearing en banc. Judge Ferguson, joined by three others, dissented on grounds that "[t]he panel's decision ignore[d] the Supreme Court's repeated and unequivocal command that all racial classifications imposed by the government must be analyzed by a reviewing court under strict scrutiny, and fail[ed] to recognize that [the] analysis is inapplicable in cases, such as this one, in which the right asserted is not inconsistent with legitimate penological objectives." (internal quotation marks and citations omitted). We granted certiorari to decide which of review applies. II A We have held that "all racial classifications [imposed by government] must be analyzed by a reviewing court under strict " Constructors, Under strict scrutiny, the government has the burden of proving that racial classifications "are narrowly tailored measures that further compelling governmental interests." We have insisted on strict scrutiny in every context, even for so-called "benign" racial classifications, such as race-conscious university admissions policies, see race-based preferences in government contracts, see 26, and race-based districting intended to improve minority representation, see The reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose. Thus, we have admonished time and *506 again that, "[a]bsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." We therefore apply strict scrutiny to all racial classifications to "`smoke out' illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool." [1] The CDC claims that its policy should be exempt from our categorical rule because it is "neutral" — that is, it "neither benefits nor burdens one group or individual more than any other group or individual." Brief for Respondents 16. In other words, strict scrutiny should not apply because all prisoners are "equally" segregated. The CDC's argument ignores our repeated command that "racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally." Indeed, we rejected the notion that separate can ever be equal — or "neutral" — 50 years ago in and we refuse to resurrect it today. See also We have previously applied a heightened of review in evaluating racial segregation in prisons. In we upheld a three-judge court's decision striking down Alabama's policy of segregation in its prisons. 33-334. Alabama had argued that desegregation would undermine prison security and discipline, 34, but we rejected that contention. Three Justices concurred "to make explicit something that is left to be gathered only by implication from the Court's opinion" — "that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." The concurring Justices emphasized that they were "unwilling to assume that state or local prison authorities might mistakenly regard such an explicit pronouncement as evincing any dilution of this Court's firm commitment to the Fourteenth Amendment's prohibition of racial discrimination." The need for strict scrutiny is no less important here, where prison officials cite racial violence as the reason for their policy. As we have recognized in the past, racial classifications "threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility." at 643 (citing J. A. Croson at ). Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating the notion that race matters most, racial segregation of inmates "may exacerbate the very patterns of [violence that it is] said to counteract." ; see also Trulson & Marquart, The Caged Melting Pot: Toward an Understanding of the Consequences of Desegregation in Prisons, 36 Law & Soc. Rev. 743, 774 (in a study of prison desegregation, finding that "over [10 years] the rate of violence between inmates segregated by race in double cells surpassed the rate among those *50 racially integrated"). See also Brief for Former State Corrections Officials as Amici Curiae 19 (opinion of former corrections officials from six States that "racial integration of cells tends to diffuse racial tensions and thus diminish interracial violence" and that "a blanket policy of racial segregation of inmates is contrary to sound prison management"). The CDC's policy is unwritten. Although California claimed at oral argument that two other States follow a similar policy, see Tr. of Oral Ar 30-31, this assertion was unsubstantiated, and we are unable to confirm or deny its accuracy.[2] Virtually all other States and the Federal Government manage their prison systems without reliance on racial segregation. See Brief for United States as Amicus Curiae 24. Federal regulations governing the Federal Bureau of Prisons (BOP) expressly prohibit racial segregation. The United States contends that racial integration actually "leads to less violence in BOP's institutions and better prepares inmates for re-entry into society." Brief for United States as Amicus Curiae 25. Indeed, the United States argues, based on its experience with the BOP, that it is possible to address "concerns of prison security through individualized consideration without the use of racial segregation, unless warranted as a necessary and temporary response to a race riot or other serious threat of race-related " 4. As to transferees, in particular, whom the CDC has already evaluated at least once, it is not clear why more individualized determinations are not possible. Because the CDC's policy is an express racial classification, it is "immediately suspect." ; see also We therefore hold that the Court of Appeals erred when it failed to apply strict scrutiny to the CDC's policy and to require the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest. B The CDC invites us to make an exception to the rule that strict scrutiny applies to all racial classifications, and instead to apply the deferential of review articulated in because its segregation policy applies only in the prison context. We decline the invitation. In we considered a claim by Missouri prisoners that regulations restricting inmate marriages and inmate-to-inmate correspondence were unconstitutional. We rejected the prisoners' argument that the regulations should be subject to strict scrutiny, asking instead whether the regulation that burdened the prisoners' *510 fundamental rights was "reasonably related" to "legitimate penological interests." We have never applied to racial classifications. itself did not involve any racial classification, and it cast no doubt on Lee. We think this unsurprising, as we have applied 's reasonable-relationship test only to rights that are "inconsistent with proper incarceration." ; see also This is because certain privileges and rights must necessarily be limited in the prison context. See Thus, for example, we have relied on in addressing First Amendment challenges to prison regulations, including restrictions on freedom of association, limits on inmate correspondence, v. Murphy, ; restrictions on inmates' access to courts, ; restrictions on receipt of subscription publications, ; and work rules limiting prisoners' attendance at religious services, We have also applied to some due process claims, such as involuntary medication of mentally ill prisoners, ; and restrictions on the right to marry, The right not to be discriminated against based on one's race is not susceptible to the logic of It is not a right that need necessarily be compromised for the sake of proper prison administration. On the contrary, compliance with the Fourteenth Amendment's ban on racial discrimination *511 is not only consistent with proper prison administration, but also bolsters the legitimacy of the entire criminal justice system. Race discrimination is "especially pernicious in the administration of justice." And public respect for our system of justice is undermined when the system discriminates based on race. Cf. When government officials are permitted to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored, society as a whole suffers. For similar reasons, we have not used to evaluate Eighth Amendment claims of cruel and unusual punishment in prison. We judge violations of that Amendment under the "deliberate indifference" rather than 's "reasonably related" See (asking whether prison officials displayed "`deliberate indifference' to the inmates' health or safety" where an inmate claimed that they violated his rights under the Eighth Amendment (quoting (12))). This is because the integrity of the criminal justice system depends on full compliance with the Eighth Amendment. See 600 F.2d 19, ("[T]he full protections of the eighth amendment most certainly remain in force [in prison]. The whole point of the amendment is to protect persons convicted of crimes. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary"). In the prison context, when the government's power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination. *512 Granting the CDC an exemption from the rule that strict scrutiny applies to all racial classifications would undermine our "unceasing efforts to eradicate racial prejudice from our criminal justice system." 41 U.S. 279, The CDC argues that "[d]eference to the particular expertise of prison officials in the difficult task of managing daily prison operations" requires a more relaxed of review for its segregation policy. Brief for Respondents 1. But we have refused to defer to state officials' judgments on race in other areas where those officials traditionally exercise substantial discretion. For example, we have held that, despite the broad discretion given to prosecutors when they use their peremptory challenges, using those challenges to strike jurors on the basis of their race is impermissible. See -96. Similarly, in the redistricting context, despite the traditional deference given to States when they design their electoral districts, we have subjected redistricting plans to strict scrutiny when States draw district lines based predominantly on race. Compare generally with We did not relax the of review for racial classifications in prison in Lee, and we refuse to do so today. Rather, we explicitly reaffirm what we implicitly held in Lee: The "necessities of prison security and discipline," 390 U.S., 34, are a compelling government interest justifying only those uses of race that are narrowly tailored to address those necessities. See 539 U. S., 53 (citing Lee for the principle that "protecting prisoners from violence might justify narrowly tailored racial discrimination"); J. A. Croson 4 U. S., at 521 (citing Lee for the proposition that "only a social emergency rising to the level of imminent danger to life and limb — for *513 example, a prison race riot, requiring temporary segregation of inmates — can justify an exception to the principle embodied in the Fourteenth Amendment that `[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens'" (quoting (196) )); see also 417 U. S., at 23 JUSTICE THOMAS would subject race-based policies in prisons to 's deferential of review because, in his view, judgments about whether race-based policies are necessary "are better left in the first instance to the officials who run our Nation's prisons." Post, at 542. But is too lenient a to ferret out invidious uses of race. requires only that the policy be "reasonably related" to "legitimate penological interests." 42 U.S., would allow prison officials to use race-based policies even when there are race-neutral means to accomplish the same goal, and even when the race-based policy does not in practice advance that goal. See, e. 321 F. 3d, at 03 (reasoning that, under the Court of Appeals did "not have to agree that the policy actually advances the CDC's legitimate interest, but only [that] `defendants might reasonably have thought that the policy would advance its interests'"). See also (warning that is not a "least restrictive alternative test" ). For example, in JUSTICE THOMAS' world, prison officials could segregate visiting areas on the ground that racial mixing would cause unrest in the racially charged prison atmosphere. Under "[t]he prisoner would have to prove that there would not be a riot[.] [But] [i]t is certainly `plausible' that such a riot could ensue: our society, as well as our prisons, contains enough racists that almost any interracial interaction could potentially lead to conflict." 336 F. 3d, at *514 1120 (Ferguson, J., dissenting from denial of rehearing en banc). Indeed, under JUSTICE THOMAS' view, there is no obvious limit to permissible segregation in prisons. It is not readily apparent why, if segregation in reception centers is justified, segregation in the dining halls, yards, and general housing areas is not also permissible. Any of these areas could be the potential site of racial If JUSTICE THOMAS' approach were to carry the day, even the blanket segregation policy struck down in Lee might stand a chance of survival if prison officials simply asserted that it was necessary to prison management. We therefore reject the for racial classifications in prisons because it would make rank discrimination too easy to defend. The CDC protests that strict scrutiny will handcuff prison administrators and render them unable to address legitimate problems of race-based violence in prisons. See also post, at 531-532, 546-547 (THOMAS, J., dissenting). Not so. Strict scrutiny is not "strict in theory, but fatal in fact." 515 U. S., 37 ; 539 U. S., 26-327 Strict scrutiny does not preclude the ability of prison officials to address the compelling interest in prison safety. Prison administrators, however, will have to demonstrate that any race-based policies are narrowly tailored to that end. See 27[3] *515 The fact that strict scrutiny applies "says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict " 29-230. At this juncture, no such determination has been made. On remand, the CDC will have the burden of demonstrating that its policy is narrowly tailored with regard to new inmates as well as transferees. Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts. Such circumstances can be considered in applying strict scrutiny, which is designed to take relevant differences into account. III We do not decide whether the CDC's policy violates the Equal Protection Clause. We hold only that strict scrutiny is the proper of review and remand the case to allow the Court of Appeals for the Ninth Circuit, or the District Court, to apply it in the first instance. See Consolidated Rail 557-55 (14) (reversing and remanding for the lower court to apply the correct legal in the first instance); (12) 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. THE CHIEF JUSTICE took no part in the decision of this case.

Justice Ginsburg

concurring

Johnson v. California

2005-02-23

https://www.courtlistener.com/opinion/137748/johnson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/137748/

2004-023

I join the Court's opinion, subject to the reservation expressed in Grutter v. Bollinger, 539 U.S. 306, 344-346 (2003) (GINSBURG, J., concurring). The Court today resoundingly reaffirms the principle that state-imposed racial segregation is highly suspect and cannot be justified on the ground that "`all persons suffer [the separation] in equal degree.'" Ante, at 506 (quoting Powers v. Ohio, 499 U.S. 400, 410 (1991)). While I join that declaration without reservation, I write separately to express again my conviction that the same standard of review ought not control judicial inspection of every official race classification. As I stated most recently in Gratz v. Bollinger, 539 U.S. 244, 301 (2003) (dissenting opinion): "Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated." See also Grutter, 539 U. S., at 344-346 (GINSBURG, J., concurring); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 271-276 (1995) (GINSBURG, J., dissenting). There is no pretense here, however, that the California Department of Corrections (CDC) installed its segregation policy to "correct inequalities." See Wechsler, The Nationalization of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968). Experience in other States and in federal prisons, see ante, at 508-509; post, at 519-520 (STEVENS, J., dissenting), strongly suggests that CDC's race-based assignment of new inmates and transferees, administratively convenient as it may be, is not necessary to the safe management of a penal institution. Disagreeing with the Court that "strict scrutiny" properly applies to any and all racial classifications, see ante, at 505-509, 511-513, 514, but agreeing that the stereotypical classification at hand warrants rigorous scrutiny, I join the Court's opinion.

I join the Court's opinion, subject to the reservation expressed in The Court today resoundingly reaffirms the principle that state-imposed racial segregation is highly suspect and cannot be justified on the ground that "`all persons suffer [the separation] in equal degree.'" Ante, at 506 ). While I join that declaration without reservation, I write separately to express again my conviction that the same standard of review ought not control judicial inspection of every official race classification. As I stated most recently in : "Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated." See also 539 U. S., at ; Adarand Constructors, There is no pretense here, however, that the California Department of Corrections (CDC) installed its segregation policy to "correct inequalities." See Wechsler, The Nationalization of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (1968). Experience in other States and in federal prisons, see ante, at 508-509; post, at 519-520 (STEVENS, J., dissenting), strongly suggests that CDC's race-based assignment of new inmates and transferees, administratively convenient as it may be, is not necessary to the safe management of a penal institution. Disagreeing with the Court that "strict scrutiny" properly applies to any and all racial classifications, see ante, at 505-509, 511-513, 514, but agreeing that the stereotypical classification at hand warrants rigorous scrutiny, I join the Court's opinion.

Justice Stevens

dissenting

Johnson v. California

2005-02-23

https://www.courtlistener.com/opinion/137748/johnson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/137748/

2004-023

In my judgment a state policy of segregating prisoners by race during the first 60 days of their incarceration, as well as the first 60 days after their transfer from one facility to another, violates the Equal Protection Clause of the Fourteenth Amendment. The California Department of Corrections (CDC) has had an ample opportunity to justify its policy during the course of this litigation, but has utterly failed to do so whether judged under strict scrutiny or the more deferential standard set out in Turner v. Safley, 482 U.S. 78 (1987). The CDC had no incentive in the proceedings below to withhold evidence supporting its policy; nor has the CDC made any offer of proof to suggest that a remand for further factual development would serve any purpose other than to postpone the inevitable. I therefore agree with the submission of the United States as amicus curiae that the Court should hold the policy unconstitutional on the current record. The CDC's segregation policy[1] is based on a conclusive presumption that housing inmates of different races together creates an unacceptable risk of racial violence. Under the policy's logic, an inmate's race is a proxy for gang membership, and gang membership is a proxy for violence. The *518 CDC, however, has offered scant empirical evidence or expert opinion to justify this use of race under even a minimal level of constitutional scrutiny. The presumption underlying the policy is undoubtedly overbroad. The CDC has made no effort to prove what fraction of new or transferred inmates are members of race-based gangs, nor has it shown more generally that interracial violence is disproportionately greater than intraracial violence in its prisons. Proclivity toward racial violence unquestionably varies from inmate to inmate, yet the CDC applies its blunderbuss policy to all new and transferred inmates housed in double cells regardless of their criminal histories or records of previous incarceration. Under the CDC's policy, for example, two car thieves of different races — neither of whom has any history of gang involvement, or of violence, for that matter — would be barred from being housed together during their first two months of prison. This result derives from the CDC's inflexible judgment that such integrated living conditions are simply too dangerous. This Court has never countenanced such racial prophylaxis. To establish a link between integrated cells and violence, the CDC relies on the views of two state corrections officials. They attested to their belief that double-celling members of different races would lead to violence and that this violence would spill out into the prison yards. One of these officials, an associate warden, testified as follows: "[W]ith the Asian population, the control sergeants have to be more careful than they do with Blacks, Whites, and Hispanics because, for example, you cannot house a Japanese inmate with a Chinese inmate. You cannot. They will kill each other. They won't even tell you about it. They will just do it. The same with Laotians, Vietnamese, Cambodians, Filipinos. You have to be very careful about housing other Asians with other Asians. It's very culturally heavy." App. 189a. *519 Such musings inspire little confidence. Indeed, this comment supports the suspicion that the policy is based on racial stereotypes and outmoded fears about the dangers of racial integration. This Court should give no credence to such cynical, reflexive conclusions about race. See, e. g., Palmore v. Sidoti, 466 U.S. 429, 432 (1984) ("Classifying persons according to their race is more likely to reflect racial prejudice than legitimate public concerns; the race, not the person, dictates the category"); Watson v. Memphis, 373 U.S. 526, 536 (1963) (rejecting the city's plea for delay in desegregating public facilities when "neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials"). The very real risk that prejudice (whether conscious or not) partly underlies the CDC's policy counsels in favor of relaxing the usual deference we pay to corrections officials in these matters. We should instead insist on hard evidence, especially given that California's policy is an outlier when compared to nationwide practice. The Federal Bureau of Prisons administers 104 institutions; no similar policy is applied in any of them. Countless state penal institutions are operated without such a policy. An amici brief filed by six former state corrections officials with an aggregate of over 120 years of experience managing prison systems in Wisconsin, Georgia, Oklahoma, Kansas, Alaska, and Washington makes clear that a blanket policy of even temporary segregation runs counter to the great weight of professional opinion on sound prison management. See Brief for Former State Corrections Officials as Amici Curiae 19. Tellingly, the CDC can only point to two other States, Texas and Oklahoma, that use racial status in assigning inmates in prison reception areas. It is doubtful from the record that these States' policies have the same broad and inflexible sweep as California's, and this is ultimately beside the point. What is important is that the Federal Government and the vast *520 majority of States address the threat of interracial violence in prisons without resorting to the expedient of segregation. In support of its policy, the CDC offers poignant evidence that its prisons are infested with violent race-based gangs. The most striking of this evidence involves a series of riots that took place between 1998 and 2001 at Pelican Bay State Prison. That prison houses some of the State's most violent criminal offenders, including "validated" gang members who have been transferred from other prisons. The riots involved both interracial and intraracial violence. In the most serious incident, involving 250-300 inmates, "Southern Hispanic" gang members, joined by some white inmates, attacked a number of black inmates. Our judicial role, however, requires that we scratch below the surface of this evidence, lest the sheer gravity of a threat be allowed to authorize any policy justified in its name. Upon inspection, the CDC's post hoc, generalized evidence of gang violence is only tenuously related to its segregation policy. Significantly, the CDC has not cited a single specific incident of interracial violence between cellmates — much less a pattern of such violence — that prompted the adoption of its unique policy years ago. Nor is there any indication that antagonism between cellmates played any role in the more recent riots the CDC mentions. And despite the CDC's focus on prison gangs and its suggestion that such gangs will recruit new inmates into committing racial violence during their 60-day stays in the reception centers, the CDC has cited no evidence of such recruitment, nor has it identified any instances in which new inmates committed racial violence against other new inmates in the common areas, such as the yard or the cafeteria. Perhaps the CDC's evidence might provide a basis for arguing that at Pelican Bay and other facilities that have experienced similar riots, some race-conscious measures are justified if properly tailored. See Lee v. Washington, 390 U.S. 333, 334 (1968) (Black, J., concurring). But even if the incidents cited by the CDC, *521 which occurred in the general prison population, were relevant to the conditions in the reception centers, they provide no support for the CDC's decision to apply its segregation policy to all of its reception centers, without regard for each center's security level or history of racial violence. Nor do the incidents provide any support for a policy applicable only to cellmates, while the common areas of the prison in which the disturbances occurred remain fully integrated. Given the inherent indignity of segregation and its shameful historical connotations, one might assume that the CDC came to its policy only as a last resort. Distressingly, this is not so: There is no evidence that the CDC has ever experimented with, or even carefully considered, race-neutral methods of achieving its goals. That the policy is unwritten reflects, I think, the evident lack of deliberation that preceded its creation. Specifically, the CDC has failed to explain why it could not, as an alternative to automatic segregation, rely on an individualized assessment of each inmate's risk of violence when assigning him to a cell in a reception center. The Federal Bureau of Prisons and other state systems do so without any apparent difficulty. For inmates who are being transferred from one facility to another — who represent approximately 85% of those subject to the segregation policy — the CDC can simply examine their prison records to determine if they have any known gang affiliations or if they have ever engaged in or threatened racial violence. For example, the CDC has had an opportunity to observe the petitioner for almost 20 years; surely the CDC could have determined his placement without subjecting him to a period of segregation.[2] For new inmates, assignments can be based on their *522 presentence reports, which contain information about offense conduct, criminal record, and personal history — including any available information about gang affiliations. In fact, state law requires the county probation officer to transmit a presentence report to the CDC along with an inmate's commitment papers. See Cal. Penal Code Ann. § 1203c (West 2004); Cal. Rule of Court 4.411(d) (Criminal Cases) (West Supp. 2004). Despite the rich information available in these records, the CDC considers these records only rarely in assigning inmates to cells in the reception centers. The CDC's primary explanation for this is administrative inefficiency — the records, it says, simply do not arrive in time. The CDC's counsel conceded at oral argument that presentence reports "have a fair amount of information," but she stated that, "in California, the presentence report does not always accompany the inmate and frequently does not. It follows some period of time later from the county." Tr. of Oral Arg. 33. Despite the state-law requirement to the contrary, counsel informed the Court that the counties are not preparing the presentence reports "in a timely fashion." Ibid. Similarly, with regard to transferees, counsel stated that their prison records do not arrive at the reception centers in time to make cell assignments. Id., at 28. Even if such inefficiencies might explain a temporary expedient in some cases, they surely do not justify a systemwide policy. When the State's interest in administrative convenience is pitted against the Fourteenth Amendment's ban on racial segregation, the latter must prevail. When there has been no "serious, good faith consideration of workable race-neutral alternatives that will achieve the [desired goal]," Grutter v. Bollinger, 539 *523 U. S. 306, 339 (2003), and when "obvious, easy alternatives" are available, Turner, 482 U. S., at 90, the conclusion that CDC's policy is unconstitutional is inescapable regardless of the standard of review that the Court chooses to apply.[3] In fact, the CDC's failure to demand timely presentence reports and prison records undercuts the sincerity of its concern for inmate security during the reception process. Race is an unreliable and necessarily underinclusive predictor of violence. Without the inmate-specific information found in the records, there is a risk that corrections officials will, for example, house together inmates of the same race who are nevertheless members of rival gangs, such as the Bloods and Crips.[4] Accordingly, while I agree that a remand is appropriate for a resolution of the issue of qualified immunity, I respectfully dissent from the Court's refusal to decide, on the basis of the record before us, that the CDC's policy is unconstitutional.

In my judgment a state policy of segregating prisoners by race during the first 60 days of their incarceration, as well as the first 60 days after their transfer from one facility to another, violates the Equal Protection Clause of the Fourteenth Amendment. The California Department of Corrections (CDC) has had an ample opportunity to justify its policy during the course of this litigation, but has utterly failed to do so whether judged under strict scrutiny or the more deferential standard set out in The CDC had no incentive in the proceedings below to withhold evidence supporting its policy; nor has the CDC made any offer of proof to suggest that a remand for further factual development would serve any purpose other than to postpone the inevitable. I therefore agree with the submission of the United States as amicus curiae that the Court should hold the policy unconstitutional on the current record. The CDC's segregation policy[1] is based on a conclusive presumption that housing inmates of different races together creates an unacceptable risk of racial violence. Under the policy's logic, an inmate's race is a proxy for gang membership, and gang membership is a proxy for violence. The *518 CDC, however, has offered scant empirical evidence or expert opinion to justify this use of race under even a minimal level of constitutional scrutiny. The presumption underlying the policy is undoubtedly overbroad. The CDC has made no effort to prove what fraction of new or transferred inmates are members of race-based gangs, nor has it shown more generally that interracial violence is disproportionately greater than intraracial violence in its prisons. Proclivity toward racial violence unquestionably varies from inmate to inmate, yet the CDC applies its blunderbuss policy to all new and transferred inmates housed in double cells regardless of their criminal histories or records of previous incarceration. Under the CDC's policy, for example, two car thieves of different races — neither of whom has any history of gang involvement, or of violence, for that matter — would be barred from being housed together during their first two months of prison. This result derives from the CDC's inflexible judgment that such integrated living conditions are simply too dangerous. This Court has never countenanced such racial prophylaxis. To establish a link between integrated cells and violence, the CDC relies on the views of two state corrections officials. They attested to their belief that double-celling members of different races would lead to violence and that this violence would spill out into the prison yards. One of these officials, an associate warden, testified as follows: "[W]ith the Asian population, the control sergeants have to be more careful than they do with Blacks, Whites, and Hispanics because, for example, you cannot house a Japanese inmate with a Chinese inmate. You cannot. They will kill each other. They won't even tell you about it. They will just do it. The same with Laotians, Vietnamese, Cambodians, Filipinos. You have to be very careful about housing other Asians with other Asians. It's very culturally heavy." App. 189a. *519 Such musings inspire little confidence. Indeed, this comment supports the suspicion that the policy is based on racial stereotypes and outmoded fears about the dangers of racial integration. This Court should give no credence to such cynical, reflexive conclusions about race. See, e. g., ; (rejecting the city's plea for delay in desegregating public facilities when "neither the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials"). The very real risk that prejudice (whether conscious or not) partly underlies the CDC's policy counsels in favor of relaxing the usual deference we pay to corrections officials in these matters. We should instead insist on hard evidence, especially given that California's policy is an outlier when compared to nationwide practice. The Federal Bureau of Prisons administers 104 institutions; no similar policy is applied in any of them. Countless state penal institutions are operated without such a policy. An amici brief filed by six former state corrections officials with an aggregate of over 120 years of experience managing prison systems in Wisconsin, Georgia, Oklahoma, Kansas, Alaska, and Washington makes clear that a blanket policy of even temporary segregation runs counter to the great weight of professional opinion on sound prison management. See Brief for Former State Corrections Officials as Amici Curiae 19. Tellingly, the CDC can only point to two other States, Texas and Oklahoma, that use racial status in assigning inmates in prison reception areas. It is doubtful from the record that these States' policies have the same broad and inflexible sweep as California's, and this is ultimately beside the point. What is important is that the Federal Government and the vast *520 majority of States address the threat of interracial violence in prisons without resorting to the expedient of segregation. In support of its policy, the CDC offers poignant evidence that its prisons are infested with violent race-based gangs. The most striking of this evidence involves a series of riots that took place between 1998 and 2001 at Pelican Bay State Prison. That prison houses some of the State's most violent criminal offenders, including "validated" gang members who have been transferred from other prisons. The riots involved both interracial and intraracial violence. In the most serious incident, involving 250-300 inmates, "Southern Hispanic" gang members, joined by some white inmates, attacked a number of black inmates. Our judicial role, however, requires that we scratch below the surface of this evidence, lest the sheer gravity of a threat be allowed to authorize any policy justified in its name. Upon inspection, the CDC's post hoc, generalized evidence of gang violence is only tenuously related to its segregation policy. Significantly, the CDC has not cited a single specific incident of interracial violence between cellmates — much less a pattern of such violence — that prompted the adoption of its unique policy years ago. Nor is there any indication that antagonism between cellmates played any role in the more recent riots the CDC mentions. And despite the CDC's focus on prison gangs and its suggestion that such gangs will recruit new inmates into committing racial violence during their 60-day stays in the reception centers, the CDC has cited no evidence of such recruitment, nor has it identified any instances in which new inmates committed racial violence against other new inmates in the common areas, such as the yard or the cafeteria. Perhaps the CDC's evidence might provide a basis for arguing that at Pelican Bay and other facilities that have experienced similar riots, some race-conscious measures are justified if properly tailored. See But even if the incidents cited by the CDC, *521 which occurred in the general prison population, were relevant to the conditions in the reception centers, they provide no support for the CDC's decision to apply its segregation policy to all of its reception centers, without regard for each center's security level or history of racial violence. Nor do the incidents provide any support for a policy applicable only to cellmates, while the common areas of the prison in which the disturbances occurred remain fully integrated. Given the inherent indignity of segregation and its shameful historical connotations, one might assume that the CDC came to its policy only as a last resort. Distressingly, this is not so: There is no evidence that the CDC has ever experimented with, or even carefully considered, race-neutral methods of achieving its goals. That the policy is unwritten reflects, I think, the evident lack of deliberation that preceded its creation. Specifically, the CDC has failed to explain why it could not, as an alternative to automatic segregation, rely on an individualized assessment of each inmate's risk of violence when assigning him to a cell in a reception center. The Federal Bureau of Prisons and other state systems do so without any apparent difficulty. For inmates who are being transferred from one facility to another — who represent approximately 85% of those subject to the segregation policy — the CDC can simply examine their prison records to determine if they have any known gang affiliations or if they have ever engaged in or threatened racial violence. For example, the CDC has had an opportunity to observe the petitioner for almost 20 years; surely the CDC could have determined his placement without subjecting him to a period of segregation.[2] For new inmates, assignments can be based on their *522 presentence reports, which contain information about offense conduct, criminal record, and personal history — including any available information about gang affiliations. In fact, state law requires the county probation officer to transmit a presentence report to the CDC along with an inmate's commitment papers. See Cal. Penal Code Ann. 1203c (West 2004); Cal. Rule of Court 4.411(d) (Criminal Cases) (West Supp. 2004). Despite the rich information available in these records, the CDC considers these records only rarely in assigning inmates to cells in the reception centers. The CDC's primary explanation for this is administrative inefficiency — the records, it says, simply do not arrive in time. The CDC's counsel conceded at oral argument that presentence reports "have a fair amount of information," but she stated that, "in California, the presentence report does not always accompany the inmate and frequently does not. It follows some period of time later from the county." Tr. of Oral Arg. 33. Despite the state-law requirement to the contrary, counsel informed the Court that the counties are not preparing the presentence reports "in a timely fashion." Similarly, with regard to transferees, counsel stated that their prison records do not arrive at the reception centers in time to make cell assignments. Even if such inefficiencies might explain a temporary expedient in some cases, they surely do not justify a systemwide policy. When the State's interest in administrative convenience is pitted against the Fourteenth Amendment's ban on racial segregation, the latter must prevail. When there has been no "serious, good faith consideration of workable race-neutral alternatives that will achieve the [desired goal]," and when "obvious, easy alternatives" are available, the conclusion that CDC's policy is unconstitutional is inescapable regardless of the standard of review that the Court chooses to apply.[3] In fact, the CDC's failure to demand timely presentence reports and prison records undercuts the sincerity of its concern for inmate security during the reception process. Race is an unreliable and necessarily underinclusive predictor of violence. Without the inmate-specific information found in the records, there is a risk that corrections officials will, for example, house together inmates of the same race who are nevertheless members of rival gangs, such as the Bloods and Crips.[4] Accordingly, while I agree that a remand is appropriate for a resolution of the issue of qualified immunity, I respectfully dissent from the Court's refusal to decide, on the basis of the record before us, that the CDC's policy is unconstitutional.

Justice Thomas

second_dissenting

Johnson v. California

2005-02-23

https://www.courtlistener.com/opinion/137748/johnson-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/137748/

2004-023

The questions presented in this case require us to resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that "`all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.'" Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995); emphasis added). On the other, this Court has no less categorically said that "the [relaxed] standard of review we adopted in Turner [v. Safley, 482 U.S. 78 (1987),] applies to all circumstances in which the needs of prison administration implicate constitutional rights." Washington v. Harper, 494 U.S. 210, 224 (1990) (emphasis added). Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less "fundamental" than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates in prisons that have been a breeding ground for some of the most violent prison gangs in America — all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up to 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. Ante, at 507-508. California is concerned with their safety and saving their lives. I respectfully dissent. *525 I To understand this case, one must understand just how limited the policy at issue is. That requires more factual background than the Court's opinion provides. Petitioner Garrison Johnson is a black inmate in the California Department of Corrections (CDC), currently serving his sentence for murder, robbery, and assault with a deadly weapon. App. 255a-256a, 259a. Johnson began serving his sentence in June 1987 at the California Institution for Men in Chino, California. Id., at 79a, 264a. Since that time he has been transferred to a number of other facilities within the CDC. Id., at 79a-82a. When an inmate like Johnson is admitted into the California prison system or transferred between the CDC's institutions, he is housed initially for a brief period — usually no more than 60 days — in one of California's prison reception centers for men. Id., at 303a-305a. CDC, Department Operations Manual § 61010.3 (2004) (hereinafter CDC Operations Manual), available at http://www.corr.ca.gov/ RegulationsPolicies/PDF/DOM/00_dept_ops_maunal.pdf (all Internet materials as visited Feb. 18, 2005, and available in Clerk of Court's case file). In 2003, the centers processed more than 40,000 newly admitted inmates, almost 72,000 inmates returned from parole, over 14,000 inmates admitted for other reasons, and some portion of the 254,000 inmates who were transferred from one prison to another. Cal. Dept. of Corrections, Movement of Prison Population 3 (2003). At the reception center, prison officials have limited information about an inmate, "particularly if he has never been housed in any CDC facility." App. 303a. The inmate therefore is classified so that prison officials can place the inmate in appropriate permanent housing. During this process, the CDC evaluates the inmate's "physical, mental and emotional health." Ibid. The CDC also reviews the inmate's criminal *526 history and record in jail to assess his security needs and classification level. Id., at 304a. Finally, the CDC investigates whether the inmate has any enemies in prison. Ibid. This process determines the inmate's ultimate housing placement and has nothing to do with race. While the process is underway, the CDC houses the inmate in a one-person cell, a two-person cell, or a dormitory. Id., at 305a. The few single cells available at reception centers are reserved for inmates who present special security problems, including those convicted of especially heinous crimes or those in need of protective custody. See, e. g., CDC Operations Manual § 61010.11.3. At the other end of the spectrum, lower risk inmates are assigned to dormitories. App. 189a-190a. Placement in either a single cell or a dormitory has nothing to do with race, except that prison officials attempt to maintain a racial balance within each dormitory. Id., at 250a. Inmates placed in single cells or dormitories lead fully integrated lives: The CDC does not distinguish based on race at any of its facilities when it comes to jobs, meals, yard and recreation time, or vocational and educational assignments. Ibid. Yet some prisoners, like Johnson, neither require confinement in a single cell nor may be safely housed in a dormitory. The CDC houses these prisoners in double cells during the 60-day period. In pairing cellmates, race is indisputably the predominant factor. Id., at 305a, 309a. California's reason is simple: Its prisons are dominated by violent gangs. Brief for Respondents 1-5. And as the largest gangs' names indicate — the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, the Nazi Low Riders, and La Nuestra Familia — they are organized along racial lines. See Part II-B, infra. According to the State, housing inmates in double cells without regard to race threatens not only prison discipline, but also the physical safety of inmates and staff. App. 305a-306a, 310a-311a. That is because double cells are especially *527 dangerous. The risk of racial violence in public areas of prisons is high, and the tightly confined, private conditions of cells hazard even more violence. Prison staff cannot see into the cells without going up to them, and inmates can cover the windows to prevent the staff from seeing inside the cells. Id., at 306a. The risk of violence caused by this privacy is grave, for inmates are confined to their cells for much of the day. Ibid.; id., at 187a-188a. Nevertheless, while race is the predominant factor in pairing cellmates, it is hardly the only one. After dividing this subset of inmates based on race, the CDC further divides them based on geographic or national origin. As an example, Hispanics from Northern and Southern California are not housed together in reception centers because they often belong to rival gangs — La Nuestra Familia and the Mexican Mafia, respectively. Id., at 185a. Likewise, Chinese and Japanese inmates are not housed together, nor are Cambodians, Filipinos, Laotians, or Vietnamese. Id., at 189a. In addition to geographic and national origin, prison officials consider a host of other factors, including inmates' age, mental health, medical needs, criminal history, and gang affiliation. Id., at 304a, 309a. For instance, when Johnson was admitted in 1987, he was a member of the Crips, a black street gang. Id., at 93a. He was therefore ineligible to be housed with nonblack inmates. Id., at 183a; Brief for Respondents 12, n. 9. Moreover, while prison officials consider race in assigning inmates to double cells, the record shows that inmates are not necessarily housed with other inmates of the same race during that 60-day period. When a Hispanic inmate affiliated with the Crips asked to be housed at the reception center with a black inmate, for example, prison administrators granted his request. App. 183a-184a, 199a. Such requests are routinely granted after the 60-day period, when prison officials complete the classification process and transfer an *528 inmate from the reception center to a permanent placement at that prison or another one.[1]Id., at 311a-312a. II Traditionally, federal courts rarely involved themselves in the administration of state prisons, "adopt[ing] a broad hands-off attitude toward problems of prison administration."[2]Procunier v. Martinez, 416 U.S. 396, 404 (1974). For most of this Nation's history, only law-abiding citizens could claim the cover of the Constitution: Upon conviction and incarceration, defendants forfeited their constitutional rights and possessed instead only those rights that the State chose to extend them. See, e. g., Shaw v. Murphy, 532 U.S. 223, 228 (2001); Ruffin v. Commonwealth, 62 Va. 790, 796 (1871). In recent decades, however, this Court has decided *529 that incarceration does not divest prisoners of all constitutional protections. See, e. g., Wolff v. McDonnell, 418 U.S. 539, 555-556 (1974) (the right to due process); Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam) (the right to free exercise of religion).[3] At the same time, this Court quickly recognized that the extension of the Constitution's demands behind prison walls had to accommodate the needs of prison administration. This Court reached that accommodation in Turner v. Safley, 482 U.S. 78 (1987), which "adopted a unitary, deferential standard for reviewing prisoners' constitutional claims," Shaw, supra, at 229. That standard should govern Johnson's claims, as it has governed a host of other claims challenging conditions of confinement, even when restricting the rights at issue would otherwise have occasioned strict scrutiny. Under the Turner standard, the CDC's policy passes constitutional muster because it is reasonably related to legitimate penological interests. A Well before Turner, this Court recognized that experienced prison administrators, and not judges, are in the best position to supervise the daily operations of prisons across this country. See, e. g., Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977) (courts must give "appropriate deference to the decisions of prison administrators"); Procunier, supra, at 405 ("[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration *530 and reform"). Turner made clear that a deferential standard of review would apply across the board to inmates' constitutional challenges to prison policies. At issue in Turner was the constitutionality of a pair of Missouri prison regulations limiting inmate-to-inmate correspondence and inmate marriages. The Court's analysis proceeded in two steps. First, the Court recognized that prisoners are not entirely without constitutional rights. As proof, it listed certain constitutional rights retained by prisoners, including the right to be "protected against invidious racial discrimination ..., Lee v. Washington, 390 U.S. 333 (1968)." Turner, 482 U. S., at 84. Second, the Court concluded that for prison administrators rather than courts to " `make the difficult judgments concerning institutional operations,'" id., at 89 (quoting Jones, supra, at 128), courts should uphold prison regulations that impinge on those constitutional rights if they reasonably relate to legitimate penological interests, 482 U.S., at 89. Nowhere did the Court suggest that Lee's right to be free from racial discrimination was immune from Turner's deferential standard of review. To the contrary, "[w]e made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights." Harper, 494 U. S., at 224 (emphasis added). Consistent with that understanding, this Court has applied Turner's standard to a host of constitutional claims by prisoners, regardless of the standard of review that would apply outside prison walls.[4] And this Court has adhered to *531 Turner despite being urged to adopt different standards of review based on the constitutional provision at issue. See Harper, supra, at 224 (Turner's standard of review "appl[ies] in all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those in which the prisoner invokes the First Amendment" (emphasis added)); O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987) ("We take this opportunity to reaffirm our refusal, even where claims are made under the First Amendment, to substitute our judgment on ... difficult and sensitive matters of institutional administration for the determinations of those charged with the formidable task of running a prison" (internal quotation marks and citation omitted; emphasis added)). Our steadfast adherence makes sense: If Turner is our accommodation of the Constitution's demands to those of prison administration, see supra, at 530, we should apply it uniformly to prisoners' challenges to their conditions of confinement. After all, Johnson's claims, even more than other claims to which we have applied Turner's test, implicate Turner's rationale. In fact, in a passage that bears repeating, the Turner Court explained precisely why deference to the judgments of California's prison officials is necessary: "Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative *532 problem, thereby unnecessarily perpetuating the involvement of the federal courts in affairs of prison administration." 482 U.S., at 89 (internal quotation marks and alteration omitted). The majority's failure to heed that advice is inexplicable, especially since Turner itself recognized the "growing problem with prison gangs." Id., at 91. In fact, there is no more "intractable problem" inside America's prisons than racial violence, which is driven by race-based prison gangs. See, e. g., Dawson v. Delaware, 503 U.S. 159, 172-173, and n. 1 (1992) (THOMAS, J., dissenting); Stefanow v. McFadden, 103 F.3d 1466, 1472 (CA9 1996) ("Anyone familiar with prisons understands the seriousness of the problems caused by prison gangs that are fueled by actively virulent racism and religious bigotry"). B The majority decides this case without addressing the problems that racial violence poses for wardens, guards, and inmates throughout the federal and state prison systems. But that is the core of California's justification for its policy: It maintains that, if it does not racially separate new cellmates thrown together in close confines during their initial admission or transfer, violence will erupt. The dangers California seeks to prevent are real. See Brief for National Association of Black Law Enforcement Officers, Inc., as Amicus Curiae 12. Controlling prison gangs is the central challenge facing correctional officers and administrators. Carlson, Prison Interventions: Evolving Strategies to Control Security Threat Groups, 5 Corrections Mgmt. Q. 10 (Winter 2001) (hereinafter Carlson). The worst gangs are highly regimented and sophisticated organizations that commit crimes ranging from drug trafficking to theft and murder. Id., at 12; Cal. Dept. of Justice, Division of Law Enforcement, Organized Crime in California Annual Report to the California Legislature 2003, p. 15, available *533 at http://caag.state.ca.us/publications/org_crime.pdf. In fact, street gangs are often just an extension of prison gangs, their "`foot soldiers'" on the outside. Ibid.; Willens, Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years 1962-1987, 37 Am. U. L. Rev. 41, 55-56 (1987). And with gang membership on the rise, the percentage of prisoners affiliated with prison gangs more than doubled in the 1990's.[5] The problem of prison gangs is not unique to California,[6] but California has a history like no other. There are at least five major gangs in this country — the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, La Nuestra Familia, and the Texas Syndicate — all of which originated in California's prisons.[7] Unsurprisingly, then, California has the largest number of gang-related inmates of any correctional system in the country, including the Federal Government. Carlson 16. As their very names suggest, prison gangs like the Aryan Brotherhood and the Black Guerrilla Family organize themselves along racial lines, and these gangs perpetuate hate and violence. Irwin 182, 184. Interracial murders and assaults *534 among inmates perpetrated by these gangs are common.[8] And, again, that brutality is particularly severe in California's prisons. See, e. g., Walker v. Gomez, 370 F.3d 969, 971 (CA9 2004) (describing "history of significant racial tension and violence" at Calipatria State Prison); id., at 979-980 (Rymer, J., dissenting) (same); App. 297a-299a (describing 2-year span at Pelican Bay Prison, during which there were no fewer than nine major riots that left at least one inmate dead and many more wounded). C It is against this backdrop of pervasive racial violence that California racially segregates inmates in the reception centers' double cells, for brief periods of up to 60 days, until such time as the State can assign permanent housing. Viewed in that context and in light of the four factors enunciated in Turner, California's policy is constitutional: The CDC's policy is reasonably related to a legitimate penological interest; alternative means of exercising the restricted right remain open to inmates; racially integrating double cells might negatively impact prison inmates, staff, and administrators; and there are no obvious, easy alternatives to the CDC's policy. 1 First, the policy is reasonably related to a legitimate penological interest. Turner, 482 U. S., at 89. The protection of inmates and staff is undeniably a legitimate penological interest. See Bell v. Wolfish, 441 U.S. 520, 546-547 (1979). *535 The evidence shows, and Johnson has never contested, that the objective of California's policy is reducing violence among the inmates and against the staff. No cells are designated for, nor are special privileges afforded to, any racial group. App. 188a, 305a. Because prison administrators use race as a factor in making initial housing assignments "solely on the basis of [its] potential implications for prison security," the CDC's cell assignment practice is neutral. Thornburgh v. Abbott, 490 U.S. 401, 415 (1989); Turner, supra, at 90. California's policy bears a valid, rational connection to this interest. The racial component to prison violence is impossible for prison administrators to ignore. Johnson himself testified that he is afraid of violence—based solely on the color of his skin.[9] In combating that violence, an inmate's arrival or transfer into a new prison setting is a critical time for inmate and staff alike. The policy protects an inmate from other prisoners, and they from him, while prison officials gather more information, including his gang affiliation, about his compatibility with other inmates. App. 249a. This connection between racial violence and the policy makes it far from "arbitrary or irrational." Turner, supra, at 89-90. Indeed, Johnson concedes that it would be perfectly constitutional for California to take account of race "as part of an overall analysis of proclivity to violence based upon a series of facts existing in that prison." Tr. of Oral Arg. 15. But that is precisely what California does. It takes into account a host of factors in addition to race: geographic or national *536 origin, age, physical size, mental health, medical needs, criminal history, and, of course, gang affiliation. Supra, at 527. California does not simply assign inmates to double cells in the reception centers based on race—it also separates intraracially (for example, northern from southern Hispanics or violent from nonviolent offenders). 2 Second, alternative means of exercising the restricted right remain open to inmates like Johnson. Turner, supra, at 90. The CDC submits, and Johnson does not contest, that all other facets of prison life are fully integrated: work, vocational, and educational assignments; dining halls; and exercise yards and recreational facilities. App. 250a. And after a brief detention period at the reception center, inmates may select their own cellmates regardless of race in the absence of overriding security concerns. Id., at 311a-312a. Simply put, Johnson has spent, and will continue to spend, the vast bulk of his sentence free from any limitation on the race of his cellmate. 3 Third, Johnson fails to establish that the accommodation he seeks—i. e., assigning inmates to double cells without regard to race—would not significantly impact prison personnel, other inmates, and the allocation of prison resources. Harper, 494 U. S., at 226-227; Turner, supra, at 90. Prison staff cannot see into the double cells without going up to them, and inmates can cover the windows so that staff cannot see inside the cells at all. App. 306a. Because of the limited number of staff to oversee the many cells, it "would be very difficult to assist inmates if the staff were needed in several places at one time." Ibid. Coordinated gang attacks against nongang cellmates could leave prison officials unable to respond effectively. In any event, diverting prison resources to monitor cells disrupts services elsewhere. *537 Then, too, fights in the cells are likely to spill over to the exercise yards and common areas. Ibid.; see also id., at 187a. As Turner made clear: "When accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." 482 U.S., at 90; see also White v. Morris, 832 F. Supp. 1129, 1130 (SD Ohio 1993) (racially integrated double-celling contributed to a race riot in which 10 people were murdered). California prison officials are united in the view that racially integrating double cells in the reception centers would lead to serious violence.[10] This is precisely the sort of testimony that the Court found persuasive in Turner itself. 482 U.S., at 92. 4 Finally, Johnson has not shown that there are "obvious, easy alternatives" to the CDC's policy. Id., at 90. Johnson contends that, for newly admitted inmates, prison officials need only look to the information available in the presentence report that must accompany a convict to prison. See Cal. Penal Code Ann. § 1203(c) (West 2004); Cal. Rules of Ct., Crim., Rule 4.411(d) (West Supp. 2004). But prison officials already do this to the extent that they can. Indeed, gang affiliation, not race, is the first factor in determining initial housing assignments. App. 315a. Race becomes the predominant factor only because gang affiliation is often not known, especially with regard to newly admitted inmates. As the Court of Appeals pointed out: "There is little chance *538 that inmates will be forthcoming about their past violent episodes or criminal gang activity so as to provide an accurate and dependable picture of the inmate." 321 F.3d 791, 806 (CA9 2003); see also App. 185a, 189a. Even if the CDC had the manpower and resources to prescreen the more than 40,000 new inmates it receives yearly, leafing through presentence reports would not tell prison officials what they need to know. See ante, at 521-523 (STEVENS, J., dissenting). Johnson presents a closer case with regard to the segregation of prisoners whom the CDC transfers between facilities. As I understand it, California has less need to segregate prisoners about whom it already knows a great deal (since they have undergone the initial classification process and been housed for some period of time). However, this does not inevitably mean that racially integrating transferred inmates, while obvious and easy, is a true alternative. For instance, an inmate may have affiliated with a gang since the CDC's last official assessment, or his past lack of racial violence may have been due to the absence of close confinement with members of other races. The CDC's policy does not appear to arise from laziness or neglect; California is a leader in institutional intelligence gathering. See Carlson 16 ("The CDC devotes 75 intelligence staff to gathering and verifying inmate-related information," both in prisons and on the streets). In short, applying the policy to transfers is not "arbitrary or irrational," requiring that we set aside the considered contrary judgment of prison administrators. Turner, supra, at 89-90. III The majority claims that strict scrutiny is the applicable standard of review based on this Court's precedents and its general skepticism of racial classifications. It is wrong on both scores. A Only once before, in Lee v. Washington, 390 U.S. 333 (1968) (per curiam), has this Court considered the constitutionality *539 of racial classifications in prisons. The majority claims that Lee applied "a heightened standard of review." Ante, at 506. But Lee did not address the applicable standard of review. And even if it bore on the standard of review, Lee would support the State here. In Lee, a three-judge District Court ordered Alabama to desegregate its prisons under Brown v. Board of Education, 347 U.S. 483 (1954). Washington v. Lee, 263 F. Supp. 327, 331-332 (MD Ala. 1966). In so doing, the District Court rejected any notion that "consideration[s] of prison security or discipline" justified the "complete and permanent segregation of the races in all the Alabama penal facilities." Id., at 331. However, the District Court noted "that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period." Ibid. (footnote omitted). It provided only one example—"the `tank' used in ... large municipal jails where intoxicated persons are placed upon their initial incarceration and kept until they become sober," id., at 331, n. 6—and the court left unmentioned why it would have been necessary to separate drunk whites from blacks on a Birmingham Saturday night. This Court, in a per curiam, one-paragraph opinion, affirmed the District Court's order. It found "unexceptionable" not only the District Court's general rule that wholesale segregation of penal facilities was unconstitutional, but also the District Court's "allowance for the necessities of prison security and discipline." Lee, 390 U. S., at 334. Indeed, Justices Black, Harlan, and Stewart concurred "to make explicit something that is left to be gathered only by implication from the Court's opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." Ibid. *540 Those Justices were "unwilling to assume" that such an "explicit pronouncement [would] evinc[e] any dilution of this Court's firm commitment to the Fourteenth Amendment's prohibition of racial discrimination." Ibid. Lee said nothing about the applicable standard of review, for there was no need. Surely Alabama's wholesale segregation of its prisons was unconstitutional even under the more deferential standard of review that applies within prisons. This Court's brief, per curiam opinion in Lee simply cannot bear the weight or interpretation the majority places on it. See U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 24 (1994) (noting "our customary skepticism toward per curiam dispositions that lack the reasoned consideration of a full opinion"); Edelman v. Jordan, 415 U.S. 651, 670-671 (1974). Yet even if Lee had announced a heightened standard of review for prison policies that pertain to race, Lee also carved out an exception to the standard that California's policy would certainly satisfy. As the Lee concurrence explained without objection, the Court's exception for "the necessities of prison security and discipline" meant that "prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." 390 U.S., at 334 (opinion of Black, Harlan, and Stewart, JJ., concurring) (emphasis added). California's policy—which is a far cry from the wholesale segregation at issue in Lee—would fall squarely within Lee's exception. Johnson has never argued that California's policy is motivated by anything other than a desire to protect inmates and staff. And the "particularized" nature of the policy is evident: It applies only to new inmates and transfers, only in a handful of prisons, only to double cells, and only then for a period of no more than two months. In the name of following a test that Lee did not create, the majority *541 opts for a more demanding standard of review than Lee's language even arguably supports. The majority heavily relies on this Court's statement that "`all racial classifications [imposed by government] ... must be analyzed by a reviewing court under strict scrutiny.'" Ante, at 505 (emphasis omitted) (quoting Adarand Constructors, Inc., 515 U. S., at 227). Adarand has nothing to do with this case. Adarand's statement that "all racial classifications" are subject to strict scrutiny addressed the contention that classifications favoring rather than disfavoring blacks are exempt. Id., at 226-227; accord, Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (THOMAS, J., concurring in part and dissenting in part). None of these statements overruled, sub silentio, Turner and its progeny, especially since the Court has repeatedly held that constitutional demands are diminished in the unique context of prisons. See, e. g., Harper, 494 U. S., at 224; Abbott, 490 U. S., at 407; Turner, 482 U. S., at 85; see also Webster v. Fall, 266 U.S. 507, 511 (1925) ("Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents"). B The majority offers various other reasons for applying strict scrutiny. None is persuasive. The majority's main reason is that "Turner's reasonable-relationship test [applies] only to rights that are `inconsistent with proper incarceration.'" Ante, at 510 (quoting Overton v. Bazzetta, 539 U.S. 126, 131 (2003)). According to the majority, the question is thus whether a right "need necessarily be compromised for the sake of proper prison administration." Ante, at 510. This inconsistency-with-proper-prison-administration test begs the question at the heart of this case. For a court to know whether any particular right is inconsistent with proper prison administration, it must have some implicit notion of what a proper prison ought to look like and how it *542 ought to be administered. Overton, supra, at 139 (THOMAS, J., concurring in judgment). But the very issue in this case is whether such second-guessing is permissible. The majority's test eviscerates Turner. Inquiring whether a given right is consistent with "proper prison administration" calls for precisely the sort of judgments that Turner said courts were ill equipped to make. In none of the cases in which the Court deferred to the judgments of prison officials under Turner did it examine whether "proper" prison security and discipline permitted greater speech or associational rights (Abbott, supra; Shaw, 532 U.S. 223; and Overton, supra); expanded access to the courts (Lewis v. Casey, 518 U.S. 343 (1996)); broader freedom from bodily restraint (Harper, supra); or additional free exercise rights (O'Lone, 482 U.S. 342). The Court has steadfastly refused to undertake the threshold standard-of-review inquiry that Turner settled, and that the majority today resurrects. And with good reason: As Turner pointed out, these judgments are better left in the first instance to the officials who run our Nation's prisons, not to the judges who run its courts. In place of the Court's usual deference, the majority gives conclusive force to its own guesswork about "proper" prison administration. It hypothesizes that California's policy might incite, rather than diminish, racial hostility.[11]Ante, *543 at 506-508. The majority's speculations are implausible. New arrivals have a strong interest in promptly convincing other inmates of their willingness to use violent force. See Brief for National Association of Black Law Enforcement Officers, Inc., as Amicus Curiae 13-14 (citing commentary and congressional findings); cf. United States v. Santiago, 46 F.3d 885, 888 (CA9 1995) (describing one Hispanic inmate's murder of another in order to join the Mexican Mafia); United States v. Silverstein, 732 F.2d 1338, 1341 (CA7 1984) (prospective members of the Aryan Brotherhood must "make bones," or commit a murder, to be eligible for membership). In any event, the majority's guesswork falls far short of the compelling showing needed to overcome the deference we owe to prison administrators. The majority contends that the Court "[has] put the burden on state actors to demonstrate that their race-based policies are justified," ante, at 506, n. 1, and "[has] refused to defer to state officials' judgments on race in other areas where those officials traditionally exercise substantial discretion," ante, at 512. Yet two Terms ago, in upholding the University of Michigan Law School's affirmative-action program, this Court deferred to the judgment by the law school's faculty and administrators on their need for diversity in the student body. See Grutter, supra, at 328 ("The Law School's educational judgment that ... diversity is essential to its educational mission is one to which we defer"). Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones. The potential consequences of second-guessing the judgments of prison administrators are also much more severe. See White v. Morris, 832 F. Supp. 1129, 1130 (SD Ohio 1993) (racially integrated double-celling that resulted *544 from federal consent decree was a factor in the worst prison riot in Ohio history). More important, as I have explained, the Court has recognized that the typically exacting review it applies to restrictions on fundamental rights must be relaxed in the unique context of prisons. See, e. g., Harper, 494 U. S., at 224; Abbott, 490 U. S., at 407; Turner, 482 U. S., at 85. The majority cannot fall back on the Constitution's usual demands, because those demands have always been lessened inside the prison walls. See supra, at 529. The majority also mentions that California's policy may be the only one of its kind, as virtually all other States and the Federal Government manage their prison systems without racially segregating inmates. Ante, at 508-509. This is both irrelevant and doubtful. It is irrelevant because the number of States that have followed California's lead matters not to the applicable standard of review (the only issue the Court today decides), but to whether California satisfies whatever standard applies, a question the majority leaves to be addressed on remand. In other words, the uniqueness of California's policy might show whether the policy is reasonable or narrowly tailored—but deciding whether to apply Turner or strict scrutiny in the first instance must depend on something else, like the majority's inconsistency-with-proper-prison-administration test. The commonness of California's housing policy is further irrelevant because strict scrutiny now applies to all claims of racial discrimination in prisons, regardless of whether the policies being challenged are unusual. The majority's assertion is doubtful, because at least two other States apply similar policies to newly admitted inmates. Both Oklahoma and Texas, like California, assign newly admitted inmates to racially segregated cells in their prison reception centers.[12] The similarity is not surprising: *545 States like California and Texas have historically had the most severe problems with prison gangs. However, even States with less severe problems maintain that policies like California's are necessary to deal with race-related prison violence. See Brief for States of Utah, Alabama, Alaska, Delaware, Idaho, Nevada, New Hampshire and North Dakota as Amici Curiae 16. Relatedly, 10.3% of all wardens at maximum security facilities in the United States report that their inmates are assigned to racially segregated cells—apparently on a permanent basis. Henderson, Cullen, Carroll, & Feinberg, Race, Rights, and Order in Prison: A National Survey of Wardens on the Racial Integration of Prison Cells, 80 Prison J. 295, 304 (Sept. 2000). In the same survey, 4.3% of the wardens report that their States have an official policy against racially integrating male inmates in cells. Id., at 302. Presumably, for the remainder of prisons in which inmates are assigned to racially segregated cells, that policy is the result of discretionary decisions by wardens rather than of official state directives. Ibid. In any event, the ongoing debate about the best way to reduce racial violence in prisons should not be resolved by judicial decree: It is the job "of prison administrators ... and not the courts, to make the difficult judgments concerning institutional operations." Jones, 433 U. S., at 128. The majority also observes that we have already carved out an exception to Turner for Eighth Amendment claims of cruel and unusual punishment in prison. See Hope v. Pelzer, *546 536 U.S. 730, 738 (2002). In that context, we have held that "[a] prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 828 (1994). Setting aside whether claims challenging inmates' conditions of confinement should be cognizable under the Eighth Amendment at all, see Hudson v. McMillian, 503 U.S. 1, 18-19 (1992) (THOMAS, J., dissenting), the "deliberate indifference" standard does not bolster the majority's argument. If anything, that standard is more deferential to the judgments of prison administrators than Turner's reasonable-relationship test: It subjects prison officials to liability only when they are subjectively aware of the risk to the inmate, and they fail to take reasonable measures to abate the risk. Farmer, supra, at 847. It certainly does not demonstrate the wisdom of an exception that imposes a heightened standard of review on the actions of prison officials. Moreover, the majority's decision subjects prison officials to competing and perhaps conflicting demands. In this case, California prison officials have uniformly averred that random double-celling poses a substantial risk of serious harm to the celled inmates. App. 245a-246a, 251a. If California assigned inmates to double cells without regard to race, knowing full well that violence might result, that would seem the very definition of deliberate indifference. See Robinson v. Prunty, 249 F.3d 862, 864-865 (CA9 2001) (prisoner alleged an Eighth Amendment violation because administrators had failed to consider race when releasing inmates into the yards); Jensen v. Clarke, 94 F.3d 1191, 1201, 1204 (CA8 1996) (court held that random double-celling by prison officials constituted deliberate indifference, and affirmed an injunction and attorney's fees awarded against the officials). Nor would a victimized inmate need to prove that prison officials had anticipated any particular attack; it would be sufficient that prison officials had ignored a dangerous condition *547 that was chronic and ongoing—like interracial housing in closely confined quarters within prisons dominated by racial gangs. Farmer, supra, at 843-844. Under Farmer, prison officials could have been ordered to take account of the very thing to which they may now have to turn a blind eye: inmates' race. Finally, the majority presents a parade of horribles designed to show that applying the Turner standard would grant prison officials unbounded discretion to segregate inmates throughout prisons. See ante, at 513-514. But we have never treated Turner as a blank check to prison officials. Quite to the contrary, this Court has long had "confidence that ... a reasonableness standard is not toothless." Abbott, 490 U. S., at 414 (internal quotation marks omitted). California prison officials segregate only double cells, because only those cells are particularly difficult to monitor—unlike "dining halls, yards, and general housing areas." Ante, at 514. Were California's policy not so narrow, the State might well have race-neutral means at its disposal capable of accommodating prisoners' rights without sacrificing their safety. See Turner, 482 U. S., at 90-91. The majority does not say why Turner's standard ably polices all other constitutional infirmities, just not racial discrimination. In any event, it is not the refusal to apply—for the first time ever—a strict standard of review in the prison context that is "fundamentally at odds" with our constitutional jurisprudence. Ante, at 506, n. 1. Instead, it is the majority's refusal—for the first time ever—to defer to the expert judgment of prison officials. IV Even under strict scrutiny analysis, "it is possible, even likely, that prison officials could show that the current policy meets the test." 336 F.3d 1117, 1121 (CA9 2003) (per curiam) (Ferguson, J., joined by Pregerson, Nelson, and Reinhardt, JJ., dissenting from denial of rehearing en banc). As Johnson concedes, all States have a compelling interest in *548 maintaining order and internal security within their prisons. See Reply Brief for Petitioner 18; see also Procunier, 416 U. S., at 404. Thus the question on remand will be whether the CDC's policy is narrowly tailored to serve California's compelling interest.[13] The other dissent notes the absence of evidence on that question, see ante, at 518-521 (opinion of STEVENS, J.), but that is hardly California's fault. From the outset, Johnson himself has alleged, in terms taken from Turner, that the CDC's policy is "not related to a legitimate penological interest." Johnson v. California, 207 F.3d 650, 655 (CA9 2000) (per curiam) (discussing Johnson's Third Amended Complaint). In reinstating Johnson's equal protection claim following the District Court's dismissal, the Court of Appeals repeated Johnson's allegation, without indicating that strict scrutiny should apply on remand before the District Court.[14]Ibid. And on remand, again Johnson alleged only that the CDC's policy "is not reasonably related to the legitimate penological interests of the CDC." App. 51a (Fourth Amended Complaint ¶ 23). After the District Court granted qualified immunity to some of the defendants, Johnson once again appealed. In his brief before the Court of Appeals, Johnson assumed that *549 both Lee and Turner applied, without arguing that there was any tension between them; indeed, nowhere in his brief did Johnson even mention the words "strict scrutiny." Brief for Appellant in No. 01-56436 (CA9), pp. 20, 26, 2001 WL 34091249. Perhaps as a result, the Court of Appeals did not discuss strict scrutiny in its second decision, the one currently before this Court. The Court of Appeals did find tension between Lee and Turner; however, it resolved this tension in Turner's favor. 321 F.3d, at 799. Yet the Court of Appeals accepted Lee's test at face value: Prison officials may only make racial classifications "`in good faith and in particularized circumstances.'" 321 F.3d, at 797. The Court of Appeals, like Johnson, did not equate Lee's test with strict scrutiny, and in fact it mentioned strict scrutiny only when it quoted the portion of Turner that rejects strict scrutiny as the proper standard of review in the prison context. 321 F.3d, at 798. Even Johnson did not make the leap equating Lee with strict scrutiny when he requested that the Court of Appeals rehear his case. Appellant's Petition for Panel Rehearing with Suggestion for Rehearing En Banc in No. 01-56436 (CA9), pp. 4-5. That leap was first made by the judges who dissented from the Court of Appeals' denial of rehearing en banc. 336 F.3d, at 1118 (Ferguson, J., joined by Pregerson, Nelson, and Reinhardt, JJ., dissenting from denial of rehearing en banc). Thus, California is now, after the close of discovery, subject to a more stringent standard than it had any reason to anticipate from Johnson's pleadings, the Court of Appeals' initial decision, or even the Court of Appeals' decision below. In such circumstances, California should be allowed to present evidence of narrow tailoring, evidence it was never obligated to present in either appearance before the District Court. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1031-1032 (1992) (remanding for consideration under the correct legal standard); id., at 1033 (KENNEDY, J., concurring in judgment) ("Although we establish a framework *550 for remand, ... we do not decide the ultimate [constitutional] question [because] [t]he facts necessary to the determination have not been developed in the record"). * * * Petitioner Garrison Johnson challenges not permanent, but temporary, segregation of only a portion of California's prisons. Of the 17 years Johnson has been incarcerated, California has assigned him a cellmate of the same race for no more than a year (and probably more like four months); Johnson has had black cellmates during the other 16 years, but by his own choice. Nothing in the record demonstrates that if Johnson (or any other prisoner) requested to be housed with a person of a different race, it would be denied (though Johnson's gang affiliation with the Crips might stand in his way). Moreover, Johnson concedes that California's prisons are racially violent places, and that he lives in fear of being attacked because of his race. Perhaps on remand the CDC's policy will survive strict scrutiny, but in the event that it does not, Johnson may well have won a Pyrrhic victory.

The questions presented in this case require us resolve two conflicting lines of precedent. On the one hand, as the Court stresses, this Court has said that "`all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized.'" On the other, this Court has no less categorically said that "the [relaxed] standard of review we adopted in [v. Safley,] applies all circumstances in which the needs of prison administration implicate constitutional rights." Emphasizing the former line of cases, the majority resolves the conflict in favor of strict scrutiny. I disagree. The Constitution has always demanded less within the prison walls. Time and again, even when faced with constitutional rights no less "fundamental" than the right be free from state-sponsored racial discrimination, we have deferred the reasonable judgments of officials experienced in running this Nation's prisons. There is good reason for such deference in this case. California oversees roughly 160,000 inmates in prisons that have been a breeding ground for some of the most violent prison gangs in America — all of them organized along racial lines. In that atmosphere, California racially segregates a portion of its inmates, in a part of its prisons, for brief periods of up 60 days, until the State can arrange permanent housing. The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. Ante, at 507-508. California is concerned with their safety and saving their lives. I respectfully dissent. *525 I To understand this case, one must understand just how limited the policy at issue is. That requires more factual background than the Court's opinion provides. Petitioner Garrison Johnson is a black inmate in the California Department of Corrections (CDC), currently serving his sentence for murder, robbery, and assault with a deadly weapon. App. 255a-256a, 259a. Johnson began serving his sentence in June 1987 at the California Institution for Men in Chino, California. at 79a, 264a. Since that time he has been transferred a number of other facilities within the CDC. at 79a-82a. When an inmate like Johnson is admitted in the California prison system or transferred between the CDC's institutions, he is housed initially for a brief period — usually no more than 60 days — in one of California's prison reception centers for men. at 303a-305a. CDC, Department Operations Manual 61010.3 (hereinafter CDC Operations Manual), available at http://www.corr.ca.gov/ RegulationsPolicies/PDF/DOM/00_dept_ops_maunal.pdf (all Internet materials as visited Feb. 18, 2005, and available in Clerk of Court's case file). In the centers processed more than 40,000 newly admitted inmates, almost 72,000 inmates returned from parole, over 14,000 inmates admitted for other reasons, and some portion of the 254,000 inmates who were transferred from one prison another. Cal. Dept. of Corrections, Movement of Prison Population 3 At the reception center, prison officials have limited information about an inmate, "particularly if he has never been housed in any CDC facility." App. 303a. The inmate therefore is classified so that prison officials can place the inmate in appropriate permanent housing. During this process, the CDC evaluates the inmate's "physical, mental and emotional health." The CDC also reviews the inmate's criminal *526 hisry and record in jail assess his security needs and classification level. at 304a. Finally, the CDC investigates whether the inmate has any enemies in prison. This process determines the inmate's ultimate housing placement and has nothing do with race. While the process is underway, the CDC houses the inmate in a one-person cell, a two-person cell, or a dormiry. at 305a. The few single cells available at reception centers are reserved for inmates who present special security problems, including those convicted of especially heinous crimes or those in need of protective cusdy. See, e. g., CDC Operations Manual 61010.11.3. At the other end of the spectrum, lower risk inmates are assigned dormiries. App. 189a-190a. Placement in either a single cell or a dormiry has nothing do with race, except that prison officials attempt maintain a racial balance within each dormiry. at 250a. Inmates placed in single cells or dormiries lead fully integrated lives: The CDC does not distinguish based on race at any of its facilities when it comes jobs, meals, yard and recreation time, or vocational and educational assignments. Yet some prisoners, like Johnson, neither require confinement in a single cell nor may be safely housed in a dormiry. The CDC houses these prisoners in double cells during the 60-day period. In pairing cellmates, race is indisputably the predominant facr. at 305a, 309a. California's reason is simple: Its prisons are dominated by violent gangs. Brief for Respondents 1-5. And as the largest gangs' names indicate — the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, the Nazi Low Riders, and La Nuestra Familia — they are organized along racial lines. See Part II-B, infra. According the State, housing inmates in double cells without regard race threatens not only prison discipline, but also the physical safety of inmates and staff. App. 305a-306a, 310a-311a. That is because double cells are especially *527 dangerous. The risk of racial violence in public areas of prisons is high, and the tightly confined, private conditions of cells hazard even more violence. Prison staff cannot see in the cells without going up them, and inmates can cover the windows prevent the staff from seeing inside the cells. at 306a. The risk of violence caused by this privacy is grave, for inmates are confined their cells for much of the day. ; at 187a-188a. Nevertheless, while race is the predominant facr in pairing cellmates, it is hardly the only one. After dividing this subset of inmates based on race, the CDC further divides them based on geographic or national origin. As an example, Hispanics from Northern and Southern California are not housed gether in reception centers because they often belong rival gangs — La Nuestra Familia and the Mexican Mafia, respectively. at 185a. Likewise, Chinese and Japanese inmates are not housed gether, nor are Cambodians, Filipinos, Laotians, or Vietnamese. at 189a. In addition geographic and national origin, prison officials consider a host of other facrs, including inmates' age, mental health, medical needs, criminal hisry, and gang at 304a, 309a. For instance, when Johnson was admitted in 1987, he was a member of the Crips, a black street gang. at 93a. He was therefore ineligible be housed with nonblack inmates. at 183a; Brief for Respondents 12, n. 9. Moreover, while prison officials consider race in assigning inmates double cells, the record shows that inmates are not necessarily housed with other inmates of the same race during that 60-day period. When a Hispanic inmate affiliated with the Crips asked be housed at the reception center with a black inmate, for example, prison administrars granted his request. App. 183a-184a, 199a. Such requests are routinely granted after the 60-day period, when prison officials complete the classification process and transfer an *528 inmate from the reception center a permanent placement at that prison or another one.[1] at 311a-312a. II Traditionally, federal courts rarely involved themselves in the administration of state prisons, "adopt[ing] a broad hands-off attitude ward problems of prison For most of this Nation's hisry, only law-abiding citizens could claim the cover of the Constitution: Upon conviction and incarceration, defendants forfeited their constitutional rights and possessed instead only those rights that the State chose extend them. See, e. g., ; In recent decades, however, this Court has decided *529 that incarceration does not divest prisoners of all constitutional protections. See, e. g., ; (the right free exercise of religion).[3] At the same time, this Court quickly recognized that the extension of the Constitution's demands behind prison walls had accommodate the needs of prison administration. This Court reached that accommodation in which "adopted a unitary, deferential standard for reviewing prisoners' constitutional claims," That standard should govern Johnson's claims, as it has governed a host of other claims challenging conditions of confinement, even when restricting the rights at issue would otherwise have occasioned strict scrutiny. Under the standard, the CDC's policy passes constitutional muster because it is reasonably related legitimate penological A Well before this Court recognized that experienced prison administrars, and not judges, are in the best position supervise the daily operations of prisons across this country. See, e. g., ; made clear that a deferential standard of review would apply across the board inmates' constitutional challenges prison policies. At issue in was the constitutionality of a pair of Missouri prison regulations limiting inmate--inmate correspondence and inmate marriages. The Court's analysis proceeded in two steps. First, the Court recognized that prisoners are not entirely without constitutional rights. As proof, it listed certain constitutional rights retained by prisoners, including the right be "protected against invidious racial discrimination," Second, the Court concluded that for prison administrars rather than courts " `make the difficult judgments concerning institutional operations,'" (quoting ), courts should uphold prison regulations that impinge on those constitutional rights if they reasonably relate legitimate penological 482 U.S., Nowhere did the Court suggest that 's right be free from racial discrimination was immune from 's deferential standard of review. To the contrary, "[w]e made quite clear that the standard of review we adopted in applies all circumstances in which the needs of prison administration implicate constitutional rights." 494 U. S., at Consistent with that understanding, this Court has applied 's standard a host of constitutional claims by prisoners, regardless of the standard of review that would apply outside prison walls.[4] And this Court has adhered *531 despite being urged adopt different standards of review based on the constitutional provision at issue. See at ('s standard of review "appl[ies] in all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those in which the prisoner invokes the First Amendment" ); ("We take this opportunity reaffirm our refusal, even where claims are made under the First Amendment, substitute our judgment on difficult and sensitive matters of institutional administration for the determinations of those charged with the formidable task of running a prison" (internal quotation marks and citation omitted; emphasis added)). Our steadfast adherence makes sense: If is our accommodation of the Constitution's demands those of prison administration, see we should apply it uniformly prisoners' challenges their conditions of confinement. After all, Johnson's claims, even more than other claims which we have applied 's test, implicate 's rationale. In fact, in a passage that bears repeating, the Court explained precisely why deference the judgments of California's prison officials is necessary: "Subjecting the day--day judgments of prison officials an inflexible strict scrutiny analysis would seriously hamper their ability anticipate security problems and adopt innovative solutions the intractable problems of prison administration. The rule would also disrt the decisionmaking process, for every administrative judgment would be subject the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution every administrative *532 problem, thereby unnecessarily perpetuating the involvement of the federal courts in affairs of prison administration." 482 U.S., The majority's failure heed that advice is inexplicable, especially since itself recognized the "growing problem with prison gangs." In fact, there is no more "intractable problem" inside America's prisons than racial violence, which is driven by race-based prison gangs. See, e. g., ; B The majority decides this case without addressing the problems that racial violence poses for wardens, guards, and inmates throughout the federal and state prison systems. But that is the core of California's justification for its policy: It maintains that, if it does not racially separate new cellmates thrown gether in close confines during their initial admission or transfer, violence will erupt. The dangers California seeks prevent are real. See Brief for National Association of Black Law Enforcement Officers, as Amicus Curiae 12. Controlling prison gangs is the central challenge facing correctional officers and administrars. Carlson, Prison Interventions: Evolving Strategies Control Security Threat Groups, 5 Corrections Mgmt. Q. 10 (hereinafter Carlson). The worst gangs are highly regimented and sophisticated organizations that commit crimes ranging from drug trafficking theft and murder. ; Cal. Dept. of Justice, Division of Law Enforcement, Organized Crime in California Annual Report the California Legislature p. 15, available *533 at http://caag.state.ca.us/publications/org_crime.pdf. In fact, street gangs are often just an extension of prison gangs, their "`foot soldiers'" on the outside. ; Willens, Structure, Content and the Exigencies of War: American Prison Law After Twenty-Five Years 1962-1987, And with gang membership on the rise, the percentage of prisoners affiliated with prison gangs more than doubled in the 1990's.[5] The problem of prison gangs is not unique California,[6] but California has a hisry like no other. There are at least five major gangs in this country — the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, La Nuestra Familia, and the Texas Syndicate — all of which originated in California's prisons.[7] Unsurprisingly, then, California has the largest number of gang-related inmates of any correctional system in the country, including the Federal Government. Carlson 16. As their very names suggest, prison gangs like the Aryan Brotherhood and the Black Guerrilla Family organize themselves along racial lines, and these gangs perpetuate hate and violence. Irwin 182, 184. Interracial murders and assaults *534 among inmates perpetrated by these gangs are common.[8] And, again, that brutality is particularly severe in California's prisons. See, e. g., ; (same); App. 297a-299a (describing 2-year span at Pelican Bay Prison, during which there were no fewer than nine major riots that left at least one inmate dead and many more wounded). C It is against this backdrop of pervasive racial violence that California racially segregates inmates in the reception centers' double cells, for brief periods of up 60 days, until such time as the State can assign permanent housing. Viewed in that context and in light of the four facrs enunciated in California's policy is constitutional: The CDC's policy is reasonably related a legitimate penological interest; alternative means of exercising the restricted right remain open inmates; racially integrating double cells might negatively impact prison inmates, staff, and administrars; and there are no obvious, easy alternatives the CDC's policy. 1 First, the policy is reasonably related a legitimate penological interest. 482 U. S., The protection of inmates and staff is undeniably a legitimate penological interest. See *535 The evidence shows, and Johnson has never contested, that the objective of California's policy is reducing violence among the inmates and against the staff. No cells are designated for, nor are special privileges afforded any racial group. App. 188a, 305a. Because prison administrars use race as a facr in making initial housing assignments "solely on the basis of [its] potential implications for prison security," the CDC's cell assignment practice is neutral. ; California's policy bears a valid, rational connection this interest. The racial component prison violence is impossible for prison administrars ignore. Johnson himself testified that he is afraid of violence—based solely on the color of his skin.[9] In combating that violence, an inmate's arrival or transfer in a new prison setting is a critical time for inmate and staff alike. The policy protects an inmate from other prisoners, and they from him, while prison officials gather more information, including his gang affiliation, about his compatibility with other inmates. App. 9a. This connection between racial violence and the policy makes it far from "arbitrary or irrational." -90. Indeed, Johnson concedes that it would be perfectly constitutional for California take account of race "as part of an overall analysis of proclivity violence based upon a series of facts existing in that prison." Tr. of Oral Arg. 15. But that is precisely what California does. It takes in account a host of facrs in addition race: geographic or national *536 origin, age, physical size, mental health, medical needs, criminal hisry, and, of course, gang California does not simply assign inmates double cells in the reception centers based on race—it also separates intraracially (for example, northern from southern Hispanics or violent from nonviolent offenders). 2 Second, alternative means of exercising the restricted right remain open inmates like Johnson. The CDC submits, and Johnson does not contest, that all other facets of prison life are fully integrated: work, vocational, and educational assignments; dining halls; and exercise yards and recreational facilities. App. 250a. And after a brief detention period at the reception center, inmates may select their own cellmates regardless of race in the absence of overriding security concerns. at 311a-312a. Simply put, Johnson has spent, and will continue spend, the vast bulk of his sentence free from any limitation on the race of his cellmate. 3 Third, Johnson fails establish that the accommodation he seeks—i. e., assigning inmates double cells without regard race—would not significantly impact prison personnel, other inmates, and the allocation of prison resources. -227; Prison staff cannot see in the double cells without going up them, and inmates can cover the windows so that staff cannot see inside the cells at all. App. 306a. Because of the limited number of staff oversee the many cells, it "would be very difficult assist inmates if the staff were needed in several places at one time." Coordinated gang attacks against nongang cellmates could leave prison officials unable respond effectively. In any event, diverting prison resources monir cells disrupts services elsewhere. *537 Then, o, fights in the cells are likely spill over the exercise yards and common areas. ; see also at 187a. As made clear: "When accommodation of an asserted right will have a significant `ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential the informed discretion of corrections officials." 482 U.S., ; see also California prison officials are united in the view that racially integrating double cells in the reception centers would lead serious violence.[10] This is precisely the sort of testimony that the Court found persuasive in itself. 4 Finally, Johnson has not shown that there are "obvious, easy alternatives" the CDC's policy. Johnson contends that, for newly admitted inmates, prison officials need only look the information available in the presentence report that must accompany a convict prison. See Cal. Penal Code Ann. 1203(c) ; Cal. Rules of Ct., Crim., Rule 4.411(d) But prison officials already do this the extent that they can. Indeed, gang affiliation, not race, is the first facr in determining initial housing assignments. App. 315a. Race becomes the predominant facr only because gang affiliation is often not known, especially with regard newly admitted inmates. As the Court of Appeals pointed out: "There is little chance *538 that inmates will be forthcoming about their past violent episodes or criminal gang activity so as provide an accurate and dependable picture of the inmate." ; see also App. 185a, 189a. Even if the CDC had the manpower and resources prescreen the more than 40,000 new inmates it receives yearly, leafing through presentence reports would not tell prison officials what they need know. See ante, at 521-523 (STEVENS, J., dissenting). Johnson presents a closer case with regard the segregation of prisoners whom the CDC transfers between facilities. As I understand it, California has less need segregate prisoners about whom it already knows a great deal (since they have undergone the initial classification process and been housed for some period of time). However, this does not inevitably mean that racially integrating transferred inmates, while obvious and easy, is a true alternative. For instance, an inmate may have affiliated with a gang since the CDC's last official assessment, or his past lack of racial violence may have been due the absence of close confinement with members of other races. The CDC's policy does not appear arise from laziness or neglect; California is a leader in institutional intelligence gathering. See Carlson 16 ("The CDC devotes 75 intelligence staff gathering and verifying inmate-related information," both in prisons and on the streets). In short, applying the policy transfers is not "arbitrary or irrational," requiring that we set aside the considered contrary judgment of prison administrars. -90. III The majority claims that strict scrutiny is the applicable standard of review based on this Court's precedents and its general skepticism of racial classifications. It is wrong on both scores. A Only once before, in has this Court considered the constitutionality *539 of racial classifications in prisons. The majority claims that applied "a heightened standard of review." Ante, at 506. But did not address the applicable standard of review. And even if it bore on the standard of review, would support the State here. In a three-judge District Court ordered Alabama desegregate its prisons under In so doing, the District Court rejected any notion that "consideration[s] of prison security or discipline" justified the "complete and permanent segregation of the races in all the Alabama penal facilities." However, the District Court noted "that in some isolated instances prison security and discipline necessitates segregation of the races for a limited period." It provided only one example—"the `tank' used in large municipal jails where inxicated persons are placed upon their initial incarceration and kept until they become sober," n. 6—and the court left unmentioned why it would have been necessary separate drunk whites from blacks on a Birmingham Saturday night. This Court, in a per curiam, one-paragraph opinion, affirmed the District Court's order. It found "unexceptionable" not only the District Court's general rule that wholesale segregation of penal facilities was unconstitutional, but also the District Court's "allowance for the necessities of prison security and discipline." Indeed, Justices Black, Harlan, and Stewart concurred " make explicit something that is left be gathered only by implication from the Court's opinion. This is that prison authorities have the right, acting in good faith and in particularized circumstances, take in account racial tensions in maintaining security, discipline, and good order in prisons and jails." *540 Those Justices were "unwilling assume" that such an "explicit pronouncement [would] evinc[e] any dilution of this Court's firm commitment the Fourteenth Amendment's prohibition of racial discrimination." said nothing about the applicable standard of review, for there was no need. Surely Alabama's wholesale segregation of its prisons was unconstitutional even under the more deferential standard of review that applies within prisons. This Court's brief, per curiam opinion in simply cannot bear the weight or interpretation the majority places on it. See U. S. Bancorp Mortgage ; U.S. 651, Yet even if had announced a heightened standard of review for prison policies that pertain race, also carved out an exception the standard that California's policy would certainly satisfy. As the concurrence explained without objection, the Court's exception for "the necessities of prison security and discipline" meant that "prison authorities have the right, acting in good faith and in particularized circumstances, take in account racial tensions in maintaining security, discipline, and good order in prisons and jails." California's policy—which is a far cry from the wholesale segregation at issue in —would fall squarely within 's exception. Johnson has never argued that California's policy is motivated by anything other than a desire protect inmates and staff. And the "particularized" nature of the policy is evident: It applies only new inmates and transfers, only in a handful of prisons, only double cells, and only then for a period of no more than two months. In the name of following a test that did not create, the majority *541 opts for a more demanding standard of review than 's language even arguably supports. The majority heavily relies on this Court's statement that "`all racial classifications [imposed by government] must be analyzed by a reviewing court under strict scrutiny.'" Ante, at 505 (emphasis omitted) (quoting Adarand Construcrs, ). Adarand has nothing do with this case. Adarand's statement that "all racial classifications" are subject strict scrutiny addressed the contention that classifications favoring rather than disfavoring blacks are exempt. ; accord, None of these statements overruled, sub silentio, and its progeny, especially since the Court has repeatedly held that constitutional demands are diminished in the unique context of prisons. See, e. g., 494 U. S., at ; ; ; see also B The majority offers various other reasons for applying strict scrutiny. None is persuasive. The majority's main reason is that "'s reasonable-relationship test [applies] only rights that are `inconsistent with proper incarceration.'" Ante, at 510 ). According the majority, the question is thus whether a right "need necessarily be compromised for the sake of proper prison administration." Ante, at 510. This inconsistency-with-proper-prison-administration test begs the question at the heart of this case. For a court know whether any particular right is inconsistent with proper prison administration, it must have some implicit notion of what a proper prison ought look like and how it *542 ought be administered. Overn, But the very issue in this case is whether such second-guessing is permissible. The majority's test eviscerates Inquiring whether a given right is consistent with "proper prison administration" calls for precisely the sort of judgments that said courts were ill equipped make. In none of the cases in which the Court deferred the judgments of prison officials under did it examine whether "proper" prison security and discipline permitted greater speech or associational rights (, ; and Overn, expanded access the courts ); broader freedom from bodily restraint (, or additional free exercise rights (O'Lone, ). The Court has steadfastly refused undertake the threshold standard-of-review inquiry that settled, and that the majority day resurrects. And with good reason: As pointed out, these judgments are better left in the first instance the officials who run our Nation's prisons, not the judges who run its courts. In place of the Court's usual deference, the majority gives conclusive force its own guesswork about "proper" prison administration. It hypothesizes that California's policy might incite, rather than diminish, racial hostility.[11]Ante, *543 at 506-508. The majority's speculations are implausible. New arrivals have a strong interest in promptly convincing other inmates of their willingness use violent force. See Brief for National Association of Black Law Enforcement Officers, as Amicus Curiae 13-14 (citing commentary and congressional findings); cf. United (describing one Hispanic inmate's murder of another in order join the Mexican Mafia); United (prospective members of the Aryan Brotherhood must "make bones," or commit a murder, be eligible for membership). In any event, the majority's guesswork falls far short of the compelling showing needed overcome the deference we owe prison administrars. The majority contends that the Court "[has] put the burden on state acrs demonstrate that their race-based policies are justified," ante, at 506, n. 1, and "[has] refused defer state officials' judgments on race in other areas where those officials traditionally exercise substantial discretion," ante, at 512. Yet two Terms ago, in upholding the University of Michigan Law School's affirmative-action program, this Court deferred the judgment by the law school's faculty and administrars on their need for diversity in the student body. See ("The Law School's educational judgment that diversity is essential its educational mission is one which we defer"). Deference would seem all the more warranted in the prison context, for whatever the Court knows of administering educational institutions, it knows much less about administering penal ones. The potential consequences of second-guessing the judgments of prison administrars are also much more severe. See (racially integrated double-celling that resulted *544 from federal consent decree was a facr in the worst prison riot in Ohio hisry). More important, as I have explained, the Court has recognized that the typically exacting review it applies restrictions on fundamental rights must be relaxed in the unique context of prisons. See, e. g., 494 U. S., at ; ; The majority cannot fall back on the Constitution's usual demands, because those demands have always been lessened inside the prison walls. See The majority also mentions that California's policy may be the only one of its kind, as virtually all other States and the Federal Government manage their prison systems without racially segregating inmates. Ante, at 508-509. This is both irrelevant and doubtful. It is irrelevant because the number of States that have followed California's lead matters not the applicable standard of review (the only issue the Court day decides), but whether California satisfies whatever standard applies, a question the majority leaves be addressed on remand. In other words, the uniqueness of California's policy might show whether the policy is reasonable or narrowly tailored—but deciding whether apply or strict scrutiny in the first instance must depend on something else, like the majority's inconsistency-with-proper-prison-administration test. The commonness of California's housing policy is further irrelevant because strict scrutiny now applies all claims of racial discrimination in prisons, regardless of whether the policies being challenged are unusual. The majority's assertion is doubtful, because at least two other States apply similar policies newly admitted inmates. Both Oklahoma and Texas, like California, assign newly admitted inmates racially segregated cells in their prison reception centers.[12] The similarity is not surprising: *545 States like California and Texas have hisrically had the most severe problems with prison gangs. However, even States with less severe problems maintain that policies like California's are necessary deal with race-related prison violence. See Brief for States of Utah, Alabama, Alaska, Delaware, Idaho, Nevada, New Hampshire and North Dakota as Amici Curiae 16. Relatedly, 10.3% of all wardens at maximum security facilities in the United States report that their inmates are assigned racially segregated cells—apparently on a permanent basis. Henderson, Cullen, Carroll, & Feinberg, Race, Rights, and Order in Prison: A National Survey of Wardens on the Racial Integration of Prison Cells, 80 Prison J. 295, 304 In the same survey, 4.3% of the wardens report that their States have an official policy against racially integrating male inmates in cells. Presumably, for the remainder of prisons in which inmates are assigned racially segregated cells, that policy is the result of discretionary decisions by wardens rather than of official state directives. In any event, the ongoing debate about the best way reduce racial violence in prisons should not be resolved by judicial decree: It is the job "of prison administrars and not the courts, make the difficult judgments concerning institutional operations." 433 U. S., The majority also observes that we have already carved out an exception for Eighth Amendment claims of cruel and unusual punishment in prison. See In that context, we have held that "[a] prison official's `deliberate indifference' a substantial risk of serious harm an inmate violates the Eighth Amendment." U.S. 825, Setting aside whether claims challenging inmates' conditions of confinement should be cognizable under the Eighth Amendment at all, see the "deliberate indifference" standard does not bolster the majority's argument. If anything, that standard is more deferential the judgments of prison administrars than 's reasonable-relationship test: It subjects prison officials liability only when they are subjectively aware of the risk the inmate, and they fail take reasonable measures abate the risk. It certainly does not demonstrate the wisdom of an exception that imposes a heightened standard of review on the actions of prison officials. Moreover, the majority's decision subjects prison officials competing and perhaps conflicting demands. In this case, California prison officials have uniformly averred that random double-celling poses a substantial risk of serious harm the celled inmates. App. 5a-6a, 251a. If California assigned inmates double cells without regard race, knowing full well that violence might result, that would seem the very definition of deliberate indifference. See 9 F.3d 862, (prisoner alleged an Eighth Amendment violation because administrars had failed consider race when releasing inmates in the yards); (court held that random double-celling by prison officials constituted deliberate indifference, and affirmed an injunction and atrney's fees awarded against the officials). Nor would a victimized inmate need prove that prison officials had anticipated any particular attack; it would be sufficient that prison officials had ignored a dangerous condition *547 that was chronic and ongoing—like interracial housing in closely confined quarters within prisons dominated by racial gangs. Under prison officials could have been ordered take account of the very thing which they may now have turn a blind eye: inmates' race. Finally, the majority presents a parade of horribles designed show that applying the standard would grant prison officials unbounded discretion segregate inmates throughout prisons. See ante, at 513-514. But we have never treated as a blank check prison officials. Quite the contrary, this Court has long had "confidence that a reasonableness standard is not othless." California prison officials segregate only double cells, because only those cells are particularly difficult monir—unlike "dining halls, yards, and general housing areas." Ante, at 514. Were California's policy not so narrow, the State might well have race-neutral means at its disposal capable of accommodating prisoners' rights without sacrificing their safety. See 482 U. S., -91. The majority does not say why 's standard ably polices all other constitutional infirmities, just not racial discrimination. In any event, it is not the refusal apply—for the first time ever—a strict standard of review in the prison context that is "fundamentally at odds" with our constitutional jurisprudence. Ante, at 506, n. 1. Instead, it is the majority's refusal—for the first time ever— defer the expert judgment of prison officials. IV Even under strict scrutiny analysis, "it is possible, even likely, that prison officials could show that the current policy meets the test." As Johnson concedes, all States have a compelling interest in *548 maintaining order and internal security within their prisons. See Reply Brief for Petitioner 18; see also 416 U. S., at Thus the question on remand will be whether the CDC's policy is narrowly tailored serve California's compelling interest.[13] The other dissent notes the absence of evidence on that question, see ante, at 518-521 (opinion of STEVENS, J.), but that is hardly California's fault. From the outset, Johnson himself has alleged, in terms taken from that the CDC's policy is "not related a legitimate penological interest." (discussing Johnson's Third Amended Complaint). In reinstating Johnson's equal protection claim following the District Court's dismissal, the Court of Appeals repeated Johnson's allegation, without indicating that strict scrutiny should apply on remand before the District Court.[14] And on remand, again Johnson alleged only that the CDC's policy "is not reasonably related the legitimate penological of the CDC." App. 51a (Fourth Amended Complaint ¶ 23). After the District Court granted qualified immunity some of the defendants, Johnson once again appealed. In his brief before the Court of Appeals, Johnson assumed that *549 both and applied, without arguing that there was any tension between them; indeed, nowhere in his brief did Johnson even mention the words "strict scrutiny." Brief for Appellant in No. 01-56436 (CA9), pp. 20, 26, WL 340919. Perhaps as a result, the Court of Appeals did not discuss strict scrutiny in its second decision, the one currently before this Court. The Court of Appeals did find tension between and ; however, it resolved this tension in 's Yet the Court of Appeals accepted 's test at face value: Prison officials may only make racial classifications "`in good faith and in particularized circumstances.'" The Court of Appeals, like Johnson, did not equate 's test with strict scrutiny, and in fact it mentioned strict scrutiny only when it quoted the portion of that rejects strict scrutiny as the proper standard of review in the prison Even Johnson did not make the leap equating with strict scrutiny when he requested that the Court of Appeals rehear his case. Appellant's Petition for Panel Rehearing with Suggestion for Rehearing En Banc in No. 01-56436 (CA9), pp. 4-5. That leap was first made by the judges who dissented from the Court of Appeals' denial of rehearing en banc. Thus, California is now, after the close of discovery, subject a more stringent standard than it had any reason anticipate from Johnson's pleadings, the Court of Appeals' initial decision, or even the Court of Appeals' decision below. In such circumstances, California should be allowed present evidence of narrow tailoring, evidence it was never obligated present in either appearance before the District Court. See ; ("Although we establish a framework *550 for remand, we do not decide the ultimate [constitutional] question [because] [t]he facts necessary the determination have not been developed in the record"). * * * Petitioner Garrison Johnson challenges not permanent, but temporary, segregation of only a portion of California's prisons. Of the 17 years Johnson has been incarcerated, California has assigned him a cellmate of the same race for no more than a year (and probably more like four months); Johnson has had black cellmates during the other 16 years, but by his own choice. Nothing in the record demonstrates that if Johnson (or any other prisoner) requested be housed with a person of a different race, it would be denied (though Johnson's gang affiliation with the Crips might stand in his way). Moreover, Johnson concedes that California's prisons are racially violent places, and that he lives in fear of being attacked because of his race. Perhaps on remand the CDC's policy will survive strict scrutiny, but in the event that it does not, Johnson may well have won a Pyrrhic vicry.

Justice Ginsburg

majority

Tellabs, Inc. v. Makor Issues & Rights, Ltd.

2007-06-21

https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/145709/

2006-066

This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 345, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005); J.I. Case Co. v. Borak, 377 U.S. 426, 432, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964). Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006). As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737. Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention "to deceive, manipulate, or defraud." Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194, and n. 12, 96 S. Ct. 1375, 47 L. Ed. 2d 668 (1976); see 15 U.S.C. § 78u-4(b)(1),(2). This case concerns the latter requirement. As set out in § 21D(b)(2) of the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). Congress left the key term "strong inference" undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the "strong inference" standard would be met if the complaint "allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." 437 F.3d 588, 602 (2006). That formulation, we conclude, does not capture the stricter demand Congress sought to convey in § 21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint's allegations the requisite state of mind. Rather, to determine whether a complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by § 21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant's conduct. To qualify as "strong" within the intendment of § 21D(b)(2), we hold, an inference of scienter must be *2505 more than merely plausible or reasonable— it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. I Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, 2001. They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs' stock. See 437 F.3d, at 591; App. 94-98.[1] Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) "falsely reassured public investors, in a series of statements ... that Tellabs was continuing to enjoy strong demand for its products and earning record revenues," when, in fact, Notebaert knew the opposite was true. Id., at 94-95, 98. From December 2000 until the spring of 2001, the Shareholders claim, Notebaert knowingly misled the public in four ways. 437 F.3d, at 596. First, he made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Id., at 596, 597. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs' next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. Id., at 596, 597-598. Third, he falsely represented Tellabs' financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of "channel stuffing," under which Tellabs flooded its customers with unwanted products). Id., at 596, 598. Fourth, Notebaert made a series of overstated revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. Id., at 596, 598-599. Based on Notebaert's sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs' stock. See id., at 592. The first public glimmer that business was not so healthy came in March 2001 when Tellabs modestly reduced its first quarter sales projections. Ibid. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, 2001, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Id., at 593. Simultaneously, the company substantially lowered its revenue projections for the second quarter of 2001. The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. Ibid. On December 3, 2002, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Ibid. Their complaint stated, inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934, 48 Stat. *2506 891, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-5 (2006), also that Notebaert was a "controlling person" under § 20(a) of the 1934 Act, 15 U.S.C. § 78t(a), and therefore derivatively liable for the company's fraudulent acts. See App. 98-101, 167-171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without prejudice. App. to Pet. for Cert. 80a-117a; see Johnson v. Tellabs, Inc., 303 F. Supp. 2d 941, 945 (N.D.Ill.2004). The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert's mental state. See 437 F.3d, at 594; App. 91-93, 152-160. The District Court again dismissed, this time with prejudice. 303 F.Supp.2d, at 971. The Shareholders had sufficiently pleaded that Notebaert's statements were misleading, the court determined, id., at 955-961, but they had insufficiently alleged that he acted with scienter, id., at 954-955, 961-969. The Court of Appeals for the Seventh Circuit reversed in relevant part. 437 F.3d, at 591. Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Id., at 595-600. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. Id., at 603-605. The Court of Appeals recognized that the PSLRA "unequivocally raise[d] the bar for pleading scienter" by requiring plaintiffs to "plea[d] sufficient facts to create a strong inference of scienter." Id., at 601 (internal quotation marks omitted). In evaluating whether that pleading standard is met, the Seventh Circuit said, "courts [should] examine all of the allegations in the complaint and then ... decide whether collectively they establish such an inference." Ibid. "[W]e will allow the complaint to survive," the court next and critically stated, "if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent .... If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal." Id., at 602. In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that "plaintiffs are entitled only to the most plausible of competing inferences." Id., at 601, 602 (quoting Fidel v. Farley, 392 F.3d 220, 227 (C.A.6 2004)). The Sixth Circuit's standard, the court observed, because it involved an assessment of competing inferences, "could potentially infringe upon plaintiffs' Seventh Amendment rights." 437 F.3d, at 602. We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter.[2] 549 U.S. ___, 127 S. Ct. 853, 166 L. Ed. 2d 681 (2007). *2507 II Section 10(b) of the Securities Exchange Act of 1934 forbids the "use or employ, in connection with the purchase or sale of any security ..., [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 78j(b). SEC Rule 10b-5 implements § 10(b) by declaring it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made ... not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR § 240.10b-5. Section 10(b), this Court has implied from the statute's text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura Pharmaceuticals, 544 U.S., at 341, 125 S. Ct. 1627. See also id., at 345, 125 S. Ct. 1627 ("The securities statutes seek to maintain public confidence in the marketplace .... by deterring fraud, in part, through the availability of private securities fraud actions."); Borak, 377 U.S., at 432, 84 S. Ct. 1555 (private securities fraud actions provide "a most effective weapon in the enforcement" of securities laws and are "a necessary supplement to Commission action"). To establish liability under § 10(b) and Rule 10b-5, a private plaintiff must prove that the defendant acted with scienter, "a mental state embracing intent to deceive, manipulate, or defraud." Ernst & Ernst, 425 U.S., at 193-194, and n. 12, 96 S. Ct. 1375.[3] In an ordinary civil action, the Federal Rules of Civil Procedure require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Pharmaceuticals, 544 U.S., at 346, 125 S. Ct. 1627 (internal quotation marks omitted). Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Greenstone v. Cambex Corp., 975 F.2d 22, 25 (C.A.1 1992) (Breyer, J.) (collecting cases). Rule 9(b) applies to "all averments of fraud or mistake"; it requires that "the circumstances constituting fraud ... be stated with particularity" but provides that "[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally." Courts of Appeals diverged on the character of the Rule 9(b) inquiry in § 10(b) cases: Could securities fraud plaintiffs allege the requisite mental state "simply by stating that scienter existed," In re GlenFed, Inc. Securities Litigation, 42 F.3d *2508 1541, 1546-1547 (C.A.9 1994) (en banc), or were they required to allege with particularity facts giving rise to an inference of scienter? Compare id., at 1546 ("We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so."), with, e.g., Greenstone, 975 F.2d, at 25 (were the law to permit a securities fraud complaint simply to allege scienter without supporting facts, "a complaint could evade too easily the `particularity' requirement in Rule 9(b)'s first sentence"). Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure § 1301.1, pp. 300-302 (3d ed.2004) (hereinafter Wright & Miller). The Second Circuit's formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to "specifically plead those [facts] which they assert give rise to a strong inference that the defendants had" the requisite state of mind. Ross v. A.H. Robins Co., 607 F.2d 545, 558 (1979) (emphasis added). The "strong inference" formulation was appropriate, the Second Circuit said, to ward off allegations of "fraud by hindsight." See, e.g., Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1129 (1994) (quoting Denny v. Barber, 576 F.2d 465, 470 (C.A.2 1978) (Friendly, J.)). Setting a uniform pleading standard for § 10(b) actions was among Congress' objectives when it enacted the PSLRA. Designed to curb perceived abuses of the § 10(b) private action—"nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers," Dabit, 547 U.S., at 81, 126 S. Ct. 1503 (quoting H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, p. 730 (hereinafter H.R. Conf. Rep.))—the PSLRA installed both substantive and procedural controls.[4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investors—parties more likely to balance the interests of the class with the long-term interests of the company— would serve as lead plaintiffs. See id., at 33-34; S.Rep. No. 104-98, p. 11 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 690. Congress also "limit[ed] recoverable damages and attorney's fees, provide[d] a `safe harbor' for forward-looking statements, ... mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss." Dabit, 547 U.S., at 81, 126 S. Ct. 1503. And in § 21D(b) of the PSLRA, Congress "impose[d] heightened pleading requirements in actions brought pursuant to § 10(b) and Rule 10b-5." Ibid. Under the PSLRA's heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) "specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading," 15 U.S.C. § 78u-4(b)(1); and (2) "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," § 78u-4(b)(2). In the instant case, as earlier stated, see supra, at 2506, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently *2509 specified Notebaert's alleged misleading statements and the reasons why the statements were misleading. 303 F.Supp.2d, at 955-961, 437 F.3d, at 596-600. But those courts disagreed on whether the Shareholders, as required by § 21D(b)(2), "state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter]," § 78u-4(b)(2). See supra, at 2506. The "strong inference" standard "unequivocally raise[d] the bar for pleading scienter," 437 F.3d, at 601, and signaled Congress' purpose to promote greater uniformity among the Circuits, see H.R. Conf. Rep., p. 41. But "Congress did not ... throw much light on what facts ... suffice to create [a strong] inference," or on what "degree of imagination courts can use in divining whether" the requisite inference exists. 437 F.3d, at 601. While adopting the Second Circuit's "strong inference" standard, Congress did not codify that Circuit's case law interpreting the standard. See § 78u-4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its "inten[tion] to strengthen existing pleading requirements," H.R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term "strong inference." Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is "strong"? See 437 F.3d, at 601-602 (collecting cases). Our task is to prescribe a workable construction of the "strong inference" standard, a reading geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims. III A We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a § 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993). On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller § 1357 (3d ed.2004 and Supp.2007). The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., Abrams v. Baker Hughes Inc., 292 F.3d 424, 431 (C.A.5 2002); Gompper v. VISX, Inc., 298 F.3d 893, 897 (C.A.9 2002). See also Brief for United States as Amicus Curiae 25. Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as long as it "alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent"; in other words, only "[i]f a reasonable person could not draw such an inference from *2510 the alleged facts" would the defendant prevail on a motion to dismiss. 437 F.3d, at 602. But in § 21D(b)(2), Congress did not merely require plaintiffs to "provide a factual basis for [their] scienter allegations," ibid. (quoting In re Cerner Corp. Securities Litigation, 425 F.3d 1079, 1084, 1085 (C.A.8 2005)), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a "strong"—i.e., a powerful or cogent—inference. See American Heritage Dictionary 1717 (4th ed.2000) (defining "strong" as "[p]ersuasive, effective, and cogent"); 16 Oxford English Dictionary 949 (2d ed.1989) (defining "strong" as "[p]owerful to demonstrate or convince" (definition 16b)); cf. 7 id., at 924 (defining "inference" as "a conclusion [drawn] from known or assumed facts or statements"; "reasoning from something known or assumed to something else which follows from it"). The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite "strong inference" of scienter, a court must consider plausible nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the "smoking-gun" genre, or even the "most plausible of competing inferences," Fidel, 392 F.3d, at 227 (quoting Helwig v. Vencor, Inc., 251 F.3d 540, 553 (C.A.6 2001) (en banc)). Recall in this regard that § 21D(b)'s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See supra, at 2508, and n. 4. Yet the inference of scienter must be more than merely "reasonable" or "permissible"—it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[5] *2511 B Tellabs contends that when competing inferences are considered, Notebaert's evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 ("The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter."). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F.3d, at 601. As earlier stated, supra, at 2509-2510, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint. Tellabs also maintains that several of the Shareholders' allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as "channel stuffing." See supra, at 2505. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44-46; Reply Brief 8. See also id., at 8-9 (complaint lacks precise dates of reports critical to distinguish legitimate conduct from culpable conduct). But see 437 F.3d, at 598, 603-604 (pointing to multiple particulars alleged by the Shareholders, including specifications as to timing). We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." § 78u-4(b)(2). We reiterate, however, that the court's job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See supra, at 2509-2510; 437 F.3d, at 601. In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?[6] IV Accounting for its construction of § 21D(b)(2), the Seventh Circuit explained that the court "th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury's role." 437 F.3d, at 602. In our view, the Seventh Circuit's concern was undue.[7] A court's *2512 comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[8] Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or shape the contours of— including the pleading and proof requirements for— § 10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-513, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002); Leatherman, 507 U.S., at 168, 113 S. Ct. 1160 (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[9] Our decision in Fidelity & Deposit Co. of Md. v. United States, 187 U.S. 315, 23 S. Ct. 120, 47 L. Ed. 194 (1902), is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit "specifically stating ..., in precise and distinct terms, the grounds of his defen[s]e." Id., at 318, 23 S. Ct. 120 (internal quotation marks omitted). The defendant's affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. Ibid. This Court upheld the District's rule against the contention that it violated the Seventh Amendment. Id., at 320, 23 S. Ct. 120. Just as the purpose of § 21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit Co. was to "preserve the courts from frivolous defen[s]es," ibid. Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply "prescribes the means of making an issue," and that, when "[t]he issue [was] made as prescribed, the right of trial by jury accrues." Ibid.; accord Ex parte Peterson, 253 U.S. 300, 310, 40 S. Ct. 543, 64 L. Ed. 919 (1920) (Brandeis, J.) (citing Fidelity & Deposit Co., and reiterating: "It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon."). See also Walker v. New Mexico & Southern Pacific R. Co., 165 *2513 U.S. 593, 596, 17 S. Ct. 421, 41 L. Ed. 837 (1897) (Seventh Amendment "does not attempt to regulate matters of pleading"). In the instant case, provided that the Shareholders have satisfied the congressionally "prescribe[d] ... means of making an issue," Fidelity & Deposit Co., 187 U.S., at 320, 23 S. Ct. 120, the case will fall within the jury's authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the "strong inference" standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a § 10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a "preponderance of the evidence." Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & MacLean v. Huddleston, 459 U.S. 375, 390, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983). * * * While we reject the Seventh Circuit's approach to § 21D(b)(2), we do not decide whether, under the standard we have described, see supra, at 2509-2511, the Shareholders' allegations warrant "a strong inference that [Notebaert and Tellabs] acted with the required state of mind," 15 U.S.C. § 78u-4(b)(2). Neither the District Court nor the Court of Appeals had the opportunity to consider the matter in light of the prescriptions we announce today. We therefore vacate the Seventh Circuit's judgment so that the case may be reexamined in accord with our construction of § 21D(b)(2). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice SCALIA, concurring in the judgment.

This Court has long recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission (SEC). See, e.g., Dura ; J.I. Case Private securities fraud actions, however, if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law. See Merrill Lynch, Pierce, Fenner & Smith As a check against abusive litigation by private parties, Congress enacted the Private Securities Litigation Reform Act of 1995 (PSLRA), Exacting pleading requirements are among the control measures Congress included in the PSLRA. The Act requires plaintiffs to state with particularity both the facts constituting the alleged violation, and the facts evidencing scienter, i.e., the defendant's intention "to deceive, manipulate, or defraud." & ; see 15 U.S.C. 78u-4(b)(1),(2). This case concerns the latter requirement. As set out in 21D(b)(2) of the PSLRA, plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. 78u-4(b)(2). Congress left the key term "strong inference" undefined, and Courts of Appeals have divided on its meaning. In the case before us, the Court of Appeals for the Seventh Circuit held that the "strong inference" standard would be met if the complaint "allege[d] facts from which, if true, a reasonable person could infer that the defendant acted with the required intent." That formulation, we conclude, does not capture the stricter demand Congress sought to convey in 21D(b)(2). It does not suffice that a reasonable factfinder plausibly could infer from the complaint's allegations the requisite state of mind. Rather, to determine whether a complaint's scienter allegations can survive threshold inspection for sufficiency, a court governed by 21D(b)(2) must engage in a comparative evaluation; it must consider, not only inferences urged by the plaintiff, as the Seventh Circuit did, but also competing inferences rationally drawn from the facts alleged. An inference of fraudulent intent may be plausible, yet less cogent than other, nonculpable explanations for the defendant's conduct. To qualify as "strong" within the intendment of 21D(b)(2), we hold, an inference of scienter must be *05 more than merely plausible or reasonable— it must be cogent and at least as compelling as any opposing inference of nonfraudulent intent. I Petitioner Tellabs, Inc., manufactures specialized equipment used in fiber optic networks. During the time period relevant to this case, petitioner Richard Notebaert was Tellabs' chief executive officer and president. Respondents (Shareholders) are persons who purchased Tellabs stock between December 11, 2000, and June 19, They accuse Tellabs and Notebaert (as well as several other Tellabs executives) of engaging in a scheme to deceive the investing public about the true value of Tellabs' stock. See ; App. 94-98.[1] Beginning on December 11, 2000, the Shareholders allege, Notebaert (and by imputation Tellabs) "falsely reassured public investors, in a series of statements that Tellabs was continuing to enjoy strong demand for its products and earning record revenues," when, in fact, Notebaert knew the opposite was true. From December 2000 until the spring of the Shareholders claim, Notebaert knowingly misled the public in four First, he made statements indicating that demand for Tellabs' flagship networking device, the TITAN 5500, was continuing to grow, when in fact demand for that product was waning. Second, Notebaert made statements indicating that the TITAN 6500, Tellabs' next-generation networking device, was available for delivery, and that demand for that product was strong and growing, when in truth the product was not ready for delivery and demand was weak. -598. Third, he falsely represented Tellabs' financial results for the fourth quarter of 2000 (and, in connection with those results, condoned the practice of "channel stuffing," under which Tellabs flooded its customers with unwanted products). Fourth, Notebaert made a series of over revenue projections, when demand for the TITAN 5500 was drying up and production of the TITAN 6500 was behind schedule. -599. Based on Notebaert's sunny assessments, the Shareholders contend, market analysts recommended that investors buy Tellabs' stock. See The first public glimmer that business was not so healthy came in March when Tellabs modestly reduced its first quarter sales projections. In the next months, Tellabs made progressively more cautious statements about its projected sales. On June 19, the last day of the class period, Tellabs disclosed that demand for the TITAN 5500 had significantly dropped. Simultaneously, the company substantially lowered its revenue projections for the second quarter of The next day, the price of Tellabs stock, which had reached a high of $67 during the period, plunged to a low of $15.87. On December 3, the Shareholders filed a class action in the District Court for the Northern District of Illinois. Their complaint inter alia, that Tellabs and Notebaert had engaged in securities fraud in violation of 10(b) of the Securities Exchange Act of 1934, 48 Stat. *06 891, 15 U.S.C. 78j(b), and SEC Rule 10b-5, 17 CFR 240.10b-5 also that Notebaert was a "controlling person" under 20(a) of the 1934 Act, 15 U.S.C. 78t(a), and therefore derivatively liable for the company's fraudulent acts. See App. 98-101, 167-171. Tellabs moved to dismiss the complaint on the ground that the Shareholders had failed to plead their case with the particularity the PSLRA requires. The District Court agreed, and therefore dismissed the complaint without App. to Pet. for Cert. 80a-117a; see The Shareholders then amended their complaint, adding references to 27 confidential sources and making further, more specific, allegations concerning Notebaert's mental state. See ; App. 91-93, 152-160. The District Court again dismissed, this time with The Shareholders had sufficiently pleaded that Notebaert's statements were misleading, the court determined, but they had insufficiently alleged that he acted with scienter, The Court of Appeals for the Seventh Circuit reversed in relevant Like the District Court, the Court of Appeals found that the Shareholders had pleaded the misleading character of Notebaert's statements with sufficient particularity. Unlike the District Court, however, the Seventh Circuit concluded that the Shareholders had sufficiently alleged that Notebaert acted with the requisite state of mind. The Court of Appeals recognized that the PSLRA "unequivocally raise[d] the bar for pleading scienter" by requiring plaintiffs to "plea[d] sufficient facts to create a strong inference of scienter." In evaluating whether that pleading standard is met, the Seventh Circuit said, "courts [should] examine all of the allegations in the complaint and then decide whether collectively they establish such an inference." "[W]e will allow the complaint to survive," the court next and critically "if it alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent If a reasonable person could not draw such an inference from the alleged facts, the defendants are entitled to dismissal." at In adopting its standard for the survival of a complaint, the Seventh Circuit explicitly rejected a stiffer standard adopted by the Sixth Circuit, i.e., that "plaintiffs are entitled only to the most plausible of competing inferences." ). The Sixth Circuit's standard, the court observed, because it involved an assessment of competing inferences, "could potentially infringe upon plaintiffs' Seventh Amendment rights." 437 F.3d, at We granted certiorari to resolve the disagreement among the Circuits on whether, and to what extent, a court must consider competing inferences in determining whether a securities fraud complaint gives rise to a "strong inference" of scienter.[2] 549 U.S. 166 L. Ed. 2d 6 *07 II Section 10(b) of the Securities Exchange Act of 1934 forbids the "use or employ, in connection with the purchase or sale of any security, [of] any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [SEC] may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. 78j(b). SEC Rule 10b-5 implements 10(b) by declaring it unlawful: "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security." 17 CFR 240.10b-5. Section 10(b), this Court has implied from the statute's text and purpose, affords a right of action to purchasers or sellers of securities injured by its violation. See, e.g., Dura See also at ("The securities statutes seek to maintain public confidence in the marketplace by deterring fraud, in part, through the availability of private securities fraud actions."); 377 U.S., at (private securities fraud actions provide "a most effective weapon in the enforcement" of securities laws and are "a necessary supplement to Commission action"). To establish liability under 10(b) and Rule 10b-5, a private plaintiff must prove that the defendant acted with scienter, "a mental state embracing intent to deceive, manipulate, or defraud." & -, and n. 12,[3] In an ordinary civil action, the Federal Rules of Civil Procedure require only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2). Although the rule encourages brevity, the complaint must say enough to give the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Dura Prior to the enactment of the PSLRA, the sufficiency of a complaint for securities fraud was governed not by Rule 8, but by the heightened pleading standard set forth in Rule 9(b). See Rule 9(b) applies to "all averments of fraud or mistake"; it requires that "the circumstances constituting fraud be with particularity" but provides that "[m]alice, intent, knowledge, and other condition of mind of a person, may be averred generally." Courts of Appeals diverged on the character of the Rule 9(b) inquiry in 10(b) cases: Could securities fraud plaintiffs allege the requisite mental state "simply by stating that scienter existed," In re GlenFed, Inc. Securities Litigation, 42 F.3d *08 1541, 1546-1547 or were they required to allege with particularity facts giving rise to an inference of scienter? Compare with, e.g., 975 F.2d, at Circuits requiring plaintiffs to allege specific facts indicating scienter expressed that requirement variously. See 5A C. Wright & A. Miller, Federal Practice and Procedure 1301.1, pp. 300-302 (hereinafter Wright & Miller). The Second Circuit's formulation was the most stringent. Securities fraud plaintiffs in that Circuit were required to "specifically plead those [facts] which they assert give rise to a strong inference that the defendants had" the requisite state of mind. The "strong inference" formulation was appropriate, the Second Circuit said, to ward off allegations of "fraud by hindsight." See, e.g., F.3d 1124, Setting a uniform pleading standard for 10(b) actions was among Congress' objectives when it enacted the PSLRA. Designed to curb perceived abuses of the 10(b) private action—"nuisance filings, targeting of deep-pocket defendants, vexatious discovery requests and manipulation by class action lawyers," 547 U.S., at (quoting H.R. Conf. Rep. No. 104-369, p. 31 (1995), U.S.Code Cong. & Admin.News 1995, p. 730 (hereinafter H.R. Conf. Rep.))—the PSLRA installed both substantive and procedural controls.[4] Notably, Congress prescribed new procedures for the appointment of lead plaintiffs and lead counsel. This innovation aimed to increase the likelihood that institutional investors—parties more likely to balance the interests of the class with the long-term interests of the company— would serve as lead plaintiffs. See ; S.Rep. No. 104-98, p. 11 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 690. Congress also "limit[ed] recoverable damages and attorney's fees, provide[d] a `safe harbor' for forward-looking statements, mandate[d] imposition of sanctions for frivolous litigation, and authorize[d] a stay of discovery pending resolution of any motion to dismiss." 547 U.S., at And in 21D(b) of the PSLRA, Congress "impose[d] heightened pleading requirements in actions brought pursuant to 10(b) and Rule 10b-5." Under the PSLRA's heightened pleading instructions, any private securities complaint alleging that the defendant made a false or misleading statement must: (1) "specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading," 15 U.S.C. 78u-4(b)(1); and (2) "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind," 78u-4(b)(2). In the instant case, as earlier see at 06, the District Court and the Seventh Circuit agreed that the Shareholders met the first of the two requirements: The complaint sufficiently *09 specified Notebaert's alleged misleading statements and the reasons why the statements were 303 F.Supp.2d, -600. But those courts disagreed on whether the Shareholders, as required by 21D(b)(2), "state[d] with particularity facts giving rise to a strong inference that [Notebaert] acted with [scienter]," 78u-4(b)(2). See at 06. The "strong inference" standard "unequivocally raise[d] the bar for pleading scienter," 437 F.3d, and signaled Congress' purpose to promote greater uniformity among the Circuits, see H.R. Conf. Rep., p. 41. But "Congress did not throw much light on what facts suffice to create [a strong] inference," or on what "degree of imagination courts can use in divining whether" the requisite inference 437 F.3d, While adopting the Second Circuit's "strong inference" standard, Congress did not codify that Circuit's case law interpreting the standard. See 78u-4(b)(2). See also Brief for United States as Amicus Curiae 18. With no clear guide from Congress other than its "inten[tion] to strengthen existing pleading requirements," H.R. Conf. Rep., p. 41, Courts of Appeals have diverged again, this time in construing the term "strong inference." Among the uncertainties, should courts consider competing inferences in determining whether an inference of scienter is "strong"? See 437 F.3d, - Our task is to prescribe a workable construction of the "strong inference" standard, a reading geared to the PSLRA's twin goals: to curb frivolous, lawyer-driven litigation, while preserving investors' ability to recover on meritorious claims. III A We establish the following prescriptions: First, faced with a Rule 12(b)(6) motion to dismiss a 10(b) action, courts must, as with any motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in the complaint as true. See On this point, the parties agree. See Reply Brief 8; Brief for Respondents 26; Brief for United States as Amicus Curiae 8, 20, 21. Second, courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice. See 5B Wright & Miller 1357 The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard. See, e.g., ; See also Brief for United States as Amicus Curiae Third, in determining whether the pleaded facts give rise to a "strong" inference of scienter, the court must take into account plausible opposing inferences. The Seventh Circuit expressly declined to engage in such a comparative inquiry. A complaint could survive, that court said, as long as it "alleges facts from which, if true, a reasonable person could infer that the defendant acted with the required intent"; in other words, only "[i]f a reasonable person could not draw such an inference from *10 the alleged facts" would the defendant prevail on a motion to dismiss. 437 F.3d, at But in 21D(b)(2), Congress did not merely require plaintiffs to "provide a factual basis for [their] scienter allegations," ), i.e., to allege facts from which an inference of scienter rationally could be drawn. Instead, Congress required plaintiffs to plead with particularity facts that give rise to a "strong"—i.e., a powerful or cogent—inference. See American Heritage Dictionary 1717 (4th ed.2000) (defining "strong" as "[p]ersuasive, effective, and cogent"); 16 Oxford English Dictionary 949 (2d ed.1989) (defining "strong" as "[p]owerful to demonstrate or convince" (definition 16b)); cf. 7 The strength of an inference cannot be decided in a vacuum. The inquiry is inherently comparative: How likely is it that one conclusion, as compared to others, follows from the underlying facts? To determine whether the plaintiff has alleged facts that give rise to the requisite "strong inference" of scienter, a court must consider plausible nonculpable explanations for the defendant's conduct, as well as inferences favoring the plaintiff. The inference that the defendant acted with scienter need not be irrefutable, i.e., of the "smoking-gun" genre, or even the "most plausible of competing inferences," Fidel, 392 F.3d, at ). Recall in this regard that 21D(b)'s pleading requirements are but one constraint among many the PSLRA installed to screen out frivolous suits, while allowing meritorious actions to move forward. See at 08, and n. 4. Yet the inference of scienter must be more than merely "reasonable" or "permissible"—it must be cogent and compelling, thus strong in light of other explanations. A complaint will survive, we hold, only if a reasonable person would deem the inference of scienter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.[5] *11 B Tellabs contends that when competing inferences are considered, Notebaert's evident lack of pecuniary motive will be dispositive. The Shareholders, Tellabs stresses, did not allege that Notebaert sold any shares during the class period. See Brief for Petitioners 50 ("The absence of any allegations of motive color all the other allegations putatively giving rise to an inference of scienter."). While it is true that motive can be a relevant consideration, and personal financial gain may weigh heavily in favor of a scienter inference, we agree with the Seventh Circuit that the absence of a motive allegation is not fatal. See 437 F.3d, As earlier at 09-10, allegations must be considered collectively; the significance that can be ascribed to an allegation of motive, or lack thereof, depends on the entirety of the complaint. Tellabs also maintains that several of the Shareholders' allegations are too vague or ambiguous to contribute to a strong inference of scienter. For example, the Shareholders alleged that Tellabs flooded its customers with unwanted products, a practice known as "channel stuffing." See at 05. But they failed, Tellabs argues, to specify whether the channel stuffing allegedly known to Notebaert was the illegitimate kind (e.g., writing orders for products customers had not requested) or the legitimate kind (e.g., offering customers discounts as an incentive to buy). Brief for Petitioners 44-46; Reply Brief 8. See also But see 603-604 We agree that omissions and ambiguities count against inferring scienter, for plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 78u-4(b)(2). We reiterate, however, that the court's job is not to scrutinize each allegation in isolation but to assess all the allegations holistically. See at 09-10; 437 F.3d, In sum, the reviewing court must ask: When the allegations are accepted as true and taken collectively, would a reasonable person deem the inference of scienter at least as strong as any opposing inference?[6] IV Accounting for its construction of 21D(b)(2), the Seventh Circuit explained that the court "th[ought] it wis[e] to adopt an approach that [could not] be misunderstood as a usurpation of the jury's role." 437 F.3d, at In our view, the Seventh Circuit's concern was undue.[7] A court's *12 comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.[8] Congress, as creator of federal statutory claims, has power to prescribe what must be pleaded to state the claim, just as it has power to determine what must be proved to prevail on the merits. It is the federal lawmaker's prerogative, therefore, to allow, disallow, or shape the contours of— including the pleading and proof requirements for— 10(b) private actions. No decision of this Court questions that authority in general, or suggests, in particular, that the Seventh Amendment inhibits Congress from establishing whatever pleading requirements it finds appropriate for federal statutory claims. Cf. ; (both recognizing that heightened pleading requirements can be established by Federal Rule, citing Fed. Rule Civ. Proc. 9(b), which requires that fraud or mistake be pleaded with particularity).[9] Our decision in Fidelity & Deposit of 47 L. Ed. is instructive. That case concerned a rule adopted by the Supreme Court of the District of Columbia in 1879 pursuant to rulemaking power delegated by Congress. The rule required defendants, in certain contract actions, to file an affidavit "specifically stating, in precise and distinct terms, the grounds of his defen[s]e." The defendant's affidavit was found insufficient, and judgment was entered for the plaintiff, whose declaration and supporting affidavit had been found satisfactory. This Court upheld the District's rule against the contention that it violated the Seventh Amendment. Just as the purpose of 21D(b) is to screen out frivolous complaints, the purpose of the prescription at issue in Fidelity & Deposit was to "preserve the courts from frivolous defen[s]es," Explaining why the Seventh Amendment was not implicated, this Court said that the heightened pleading rule simply "prescribes the means of making an issue," and that, when "[t]he issue [was] made as prescribed, the right of trial by jury accrues." ; accord Ex parte Peterson, 3 U.S. 300, (citing Fidelity & Deposit and reiterating: "It does not infringe the constitutional right to a trial by jury [in a civil case], to require, with a view to formulating the issues, an oath by each party to the facts relied upon."). See also 13 U.S. 593, (1) In the instant case, provided that the Shareholders have satisfied the congressionally "prescribe[d] means of making an issue," Fidelity & Deposit 187 U.S., the case will fall within the jury's authority to assess the credibility of witnesses, resolve any genuine issues of fact, and make the ultimate determination whether Notebaert and, by imputation, Tellabs acted with scienter. We emphasize, as well, that under our construction of the "strong inference" standard, a plaintiff is not forced to plead more than she would be required to prove at trial. A plaintiff alleging fraud in a 10(b) action, we hold today, must plead facts rendering an inference of scienter at least as likely as any plausible opposing inference. At trial, she must then prove her case by a "preponderance of the evidence." Stated otherwise, she must demonstrate that it is more likely than not that the defendant acted with scienter. See Herman & * * * While we reject the Seventh Circuit's approach to 21D(b)(2), we do not decide whether, under the standard we have described, see at 09-11, the Shareholders' allegations warrant "a strong inference that [Notebaert and Tellabs] acted with the required state of mind," 15 U.S.C. 78u-4(b)(2). Neither the District Court nor the Court of Appeals had the opportunity to consider the matter in light of the prescriptions we announce today. We therefore vacate the Seventh Circuit's judgment so that the case may be reexamined in accord with our construction of 21D(b)(2). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice SCALIA, concurring in the judgment.

Justice Scalia

concurring

Tellabs, Inc. v. Makor Issues & Rights, Ltd.

2007-06-21

https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/145709/

2006-066

I fail to see how an inference that is merely "at least as compelling as any opposing inference," ante, at 2505, can conceivably be called what the statute here at issue requires: a "strong inference," 15 U.S.C. § 78u-4(b)(2). If a jade falcon were stolen from a room to which only A and B had access, could it possibly be said there was a "strong inference" that B was the thief? I think not, and I therefore think that the Court's test must fail. In my view, the test should be whether the inference of scienter (if any) is more plausible than the inference of innocence.[*] The Court's explicit rejection of this reading, ante, at 2510, rests on two assertions. The first (doubtless true) is that the statute does not require that "[t]he inference that the defendant acted with scienter... be irrefutable, i.e., of the `smoking-gun' genre," ibid. It is up to Congress, *2514 however, and not to us, to determine what pleading standard would avoid those extremities while yet effectively deterring baseless actions. Congress has expressed its determination in the phrase "strong inference"; it is our job to give that phrase its normal meaning. And if we are to abandon text in favor of unexpressed purpose, as the Court does, it is inconceivable that Congress's enactment of stringent pleading requirements in the Private Securities Litigation Reform Act of 1995 somehow manifests the purpose of giving plaintiffs the edge in close cases. The Court's second assertion (also true) is that "an inference at least as likely as competing inferences can, in some cases, warrant recovery." Ante, at 2510, n. 5 (citing Summers v. Tice, 33 Cal. 2d 80, 84-87, 199 P.2d 1, 3-5 (1948) (in bank)). Summers is a famous case, however, because it sticks out of the ordinary body of tort law like a sore thumb. It represented "a relaxation" of "such proof as is ordinarily required" to succeed in a negligence action. Id., at 86, 199 P.2d, at 4 (internal quotation marks omitted). There is no indication that the statute at issue here was meant to relax the ordinary rule under which a tie goes to the defendant. To the contrary, it explicitly strengthens that rule by extending it to the pleading stage of a case. One of petitioners' amici suggests that my reading of the statute would transform the text from requiring a "strong" inference to requiring the "strongest" inference. See Brief for American Association for Justice as Amicus Curiae 27. The point might have some force if Congress could have more clearly adopted my standard by using the word "strongest" instead of the word "strong." But the use of the superlative would not have made any sense given the provision's structure: What does it mean to require a plaintiff to plead "facts giving rise to the strongest inference that the defendant acted with the required state of mind"? It is certainly true that, if Congress had wanted to adopt my standard with even greater clarity, it could have restructured the entire provision—to require, for example, that the plaintiff plead "facts giving rise to an inference of scienter that is more compelling than the inference that the defendant acted with a nonculpable state of mind." But if one is to consider the possibility of total restructuring, it is equally true that, to express the Court's standard, Congress could have demanded "an inference of scienter that is at least as compelling as the inference that the defendant acted with a nonculpable state of mind." Argument from the possibility of saying it differently is clearly a draw. We must be content to give "strong inference" its normal meaning. I hasten to add that, while precision of interpretation should always be pursued for its own sake, I doubt that in this instance what I deem to be the correct test will produce results much different from the Court's. How often is it that inferences are precisely in equipoise? All the more reason, I think, to read the language for what it says. The Court and the dissent criticize me for suggesting that there is only one reading of the text. Ante, at 2510-2511, n. 5; post, at 2517, n. 1 (STEVENS, J., dissenting). They are both mistaken. I assert only that mine is the natural reading of the statute (i.e., the normal reading), not that it is the only conceivable one. The Court has no standing to object to this approach, since it concludes that, in another respect, the statute admits of only one natural reading, namely, that competing inferences must be weighed because the strong-inference requirement "is inherently comparative" ante, at 2510. As for the dissent, it asserts that the statute cannot possibly have a natural and discernible meaning, *2515 since "courts of appeals" and "Members of this Court" "have divided" over the question. It was just weeks ago, however, that the author of the dissent, joined by the author of today's opinion for the Court, concluded that a statute's meaning was "plain," Rockwell Int'l Corp. v. United States, 549 U.S. ___, ___, 127 S. Ct. 1397, 1412, 167 L. Ed. 2d 190 (2007) (STEVENS, J., dissenting), even though the Courts of Appeals and Members of this Court divided over the question, id., at ___, n. 5 (127 S.Ct., at 1407, n. 5). Was plain meaning then, as the dissent claims it is today, post, at 2517, n. 1, "in the eye of the beholder"? It is unremarkable that various Justices in this case reach different conclusions about the correct interpretation of the statutory text. It is remarkable, however, that the dissent believes that Congress "implicitly delegated significant lawmaking authority to the Judiciary in determining how th[e] [strong-inference] standard should operate in practice." Post, at 2516-2517. This is language usually employed to describe the discretion conferred upon administrative agencies, which need not adopt what courts would consider the interpretation most faithful to the text of the statute, but may choose some other interpretation, so long as it is within the bounds of the reasonable, and may later change to some other interpretation that is within the bounds of the reasonable. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Courts, by contrast, must give the statute its single, most plausible, reading. To describe this as an exercise of "delegated lawmaking authority" seems to me peculiar—unless one believes in lawmakers who have no discretion. Courts must apply judgment, to be sure. But judgment is not discretion. Even if I agreed with the Court's interpretation of "strong inference," I would not join the Court's opinion because of its frequent indulgence in the last remaining legal fiction of the West: that the report of a single committee of a single House expresses the will of Congress. The Court says, for example, that "Congress'[s] purpose" was "to promote greater uniformity among the Circuits," ante, at 2509, relying for that certitude upon the statement of managers accompanying a House Conference Committee Report whose text was never adopted by the House, much less by the Senate, and as far as we know was read by almost no one. The Court is sure that Congress "`inten[ded] to strengthen existing pleading requirements,'" ibid., because—again—the statement of managers said so. I come to the same conclusion for the much safer reason that the law which Congress adopted (and which the Members of both Houses actually voted on) so indicates. And had the legislation not done so, the statement of managers assuredly could not have remedied the deficiency. With the above exceptions, I am generally in agreement with the Court's analysis, and so concur in its judgment. Justice ALITO, concurring in the judgment. I agree with the Court that the Seventh Circuit used an erroneously low standard for determining whether the plaintiffs in this case satisfied their burden of pleading "with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. § 78u-4(b)(2). I further agree that the case should be remanded to allow the lower courts to decide in the first instance whether the allegations survive under the correct standard. In two respects, however, I disagree with the opinion of the Court. First, the best interpretation of the statute is that only those facts that are *2516 alleged "with particularity" may properly be considered in determining whether the allegations of scienter are sufficient. Second, I agree with Justice SCALIA that a "strong inference" of scienter, in the present context, means an inference that is more likely than not correct. I On the first point, the statutory language is quite clear. Section 78u-4(b)(2) states that "the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Thus, "a strong inference" of scienter must arise from those facts that are stated "with particularity." It follows that facts not stated with the requisite particularity cannot be considered in determining whether the strong-inference test is met. In dicta, however, the Court states that "omissions and ambiguities" merely "count against" inferring scienter, and that a court should consider all allegations of scienter, even nonparticularized ones, when considering whether a complaint meets the "strong inference" requirement. Ante, at 2511. Not only does this interpretation contradict the clear statutory language on this point, but it undermines the particularity requirement's purpose of preventing a plaintiff from using vague or general allegations in order to get by a motion to dismiss for failure to state a claim. Allowing a plaintiff to derive benefit from such allegations would permit him to circumvent this important provision. Furthermore, the Court's interpretation of the particularity requirement in no way distinguishes it from normal pleading review, under which a court naturally gives less weight to allegations containing "omissions and ambiguities" and more weight to allegations stating particularized facts. The particularity requirement is thus stripped of all meaning. Questions certainly may arise as to whether certain allegations meet the statutory particularity requirement, but where that requirement is violated, the offending allegations cannot be taken into account. II I would also hold that a "strong inference that the defendant acted with the required state of mind" is an inference that is stronger than the inference that the defendant lacked the required state of mind. Congress has provided very little guidance regarding the meaning of "strong inference," and the difference between the Court's interpretation (the inference of scienter must be at least as strong as the inference of no scienter) and Justice SCALIA's (the inference of scienter must be at least marginally stronger than the inference of no scienter) is unlikely to make any practical difference. The two approaches are similar in that they both regard the critical question as posing a binary choice (either the facts give rise to a "strong inference" of scienter or they do not). But Justice SCALIA's interpretation would align the pleading test under § 78u-4(b)(2) with the test that is used at the summary-judgment and judgment-as-a-matter-of-law stages, whereas the Court's test would introduce a test previously unknown in civil litigation. It seems more likely that Congress meant to adopt a known quantity and thus to adopt Justice SCALIA's approach.

I fail to see how an inference that is merely "at least as compelling as any opposing inference," ante, at 2505, can conceivably be called what the statute here at issue requires: a "strong inference," 15 U.S.C. 78u-4(b)(2). If a jade falcon were stolen from a room to which only A and B had access, could it possibly be said there was a "strong inference" that B was the thief? I think not, and I therefore think that the Court's test must fail. In my view, the test should be whether the inference of scienter (if any) is more plausible than the inference of innocence.[*] The Court's explicit rejection of this reading, ante, at 2510, rests on two assertions. The first (doubtless true) is that the statute does not require that "[t]he inference that the defendant acted with scienter. be irrefutable, i.e., of the `smoking-gun' genre," It is up to Congress, *2514 however, and not to us, to determine what pleading standard would avoid those extremities while yet effectively deterring baseless actions. Congress has expressed its determination in the phrase "strong inference"; it is our job to give that phrase its normal meaning. And if we are to abandon text in favor of unexpressed purpose, as the Court does, it is inconceivable that Congress's enactment of stringent pleading requirements in the Private Securities Litigation Reform Act of 1995 somehow manifests the purpose of giving plaintiffs the edge in close cases. The Court's second assertion (also true) is that "an inference at least as likely as competing inferences can, in some cases, warrant recovery." Ante, at 2510, n. 5 ). Summers is a famous case, however, because it sticks out of the ordinary body of tort law like a sore thumb. It represented "a relaxation" of "such proof as is ordinarily required" to succeed in a negligence action. There is no indication that the statute at issue here was meant to relax the ordinary rule under which a tie goes to the defendant. To the contrary, it explicitly strengthens that rule by extending it to the pleading stage of a case. One of petitioners' amici suggests that my reading of the statute would transform the text from requiring a "strong" inference to requiring the "strongest" inference. See Brief for American Association for Justice as Amicus Curiae 27. The point might have some force if Congress could have more clearly adopted my standard by using the word "strongest" instead of the word "strong." But the use of the superlative would not have made any sense given the provision's structure: What does it mean to require a plaintiff to plead "facts giving rise to the strongest inference that the defendant acted with the required state of mind"? It is certainly true that, if Congress had wanted to adopt my standard with even greater clarity, it could have restructured the entire provision—to require, for example, that the plaintiff plead "facts giving rise to an inference of scienter that is more compelling than the inference that the defendant acted with a nonculpable state of mind." But if one is to consider the possibility of total restructuring, it is equally true that, to express the Court's standard, Congress could have demanded "an inference of scienter that is at least as compelling as the inference that the defendant acted with a nonculpable state of mind." Argument from the possibility of saying it differently is clearly a draw. We must be content to give "strong inference" its normal meaning. I hasten to add that, while precision of interpretation should always be pursued for its own sake, I doubt that in this instance what I deem to be the correct test will produce results much different from the Court's. How often is it that inferences are precisely in equipoise? All the more reason, I think, to read the language for what it says. The Court and the dissent criticize me for suggesting that there is only one reading of the text. Ante, at 2510-2511, n. 5; post, at 2517, n. 1 They are both mistaken. I assert only that mine is the natural reading of the statute (i.e., the normal reading), not that it is the only conceivable one. The Court has no standing to object to this approach, since it concludes that, in another respect, the statute admits of only one natural reading, namely, that competing inferences must be weighed because the strong-inference requirement "is inherently comparative" ante, at 2510. As for the dissent, it asserts that the statute cannot possibly have a natural and discernible meaning, *2515 since "courts of appeals" and "Members of this Court" "have divided" over the question. It was just weeks ago, however, that the author of the dissent, joined by the author of today's opinion for the Court, concluded that a statute's meaning was "plain," Rockwell Int'l even though the Courts of Appeals and Members of this Court divided over the question, at n. 5 (, n. 5). Was plain meaning then, as the dissent claims it is today, post, at 2517, n. 1, "in the eye of the beholder"? It is unremarkable that various Justices in this case reach different conclusions about the correct interpretation of the statutory text. It is remarkable, however, that the dissent believes that Congress "implicitly delegated significant lawmaking authority to the Judiciary in determining how th[e] [strong-inference] standard should operate in practice." Post, at 2516-2517. This is language usually employed to describe the discretion conferred upon administrative agencies, which need not adopt what courts would consider the interpretation most faithful to the text of the statute, but may choose some other interpretation, so long as it is within the bounds of the reasonable, and may later change to some other interpretation that is within the bounds of the reasonable. See Chevron U.S.A. Courts, by contrast, must give the statute its single, most plausible, reading. To describe this as an exercise of "delegated lawmaking authority" seems to me peculiar—unless one believes in lawmakers who have no discretion. Courts must apply judgment, to be sure. But judgment is not discretion. Even if I agreed with the Court's interpretation of "strong inference," I would not join the Court's opinion because of its frequent indulgence in the last remaining legal fiction of the West: that the report of a single committee of a single House expresses the will of Congress. The Court says, for example, that "Congress'[s] purpose" was "to promote greater uniformity among the Circuits," ante, at 2509, relying for that certitude upon the statement of managers accompanying a House Conference Committee Report whose text was never adopted by the House, much less by the Senate, and as far as we know was read by almost no one. The Court is sure that Congress "`inten[ded] to strengthen existing pleading requirements,'" because—again—the statement of managers said so. I come to the same conclusion for the much safer reason that the law which Congress adopted (and which the Members of both Houses actually voted on) so indicates. And had the legislation not done so, the statement of managers assuredly could not have remedied the deficiency. With the above exceptions, I am generally in agreement with the Court's analysis, and so concur in its judgment. Justice ALITO, concurring in the judgment. I agree with the Court that the Seventh Circuit used an erroneously low standard for determining whether the plaintiffs in this case satisfied their burden of pleading "with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 U.S.C. 78u-4(b)(2). I further agree that the case should be remanded to allow the lower courts to decide in the first instance whether the allegations survive under the correct standard. In two respects, however, I disagree with the opinion of the Court. First, the best interpretation of the statute is that only those facts that are *2516 alleged "with particularity" may properly be considered in determining whether the allegations of scienter are sufficient. Second, I agree with Justice SCALIA that a "strong inference" of scienter, in the present context, means an inference that is more likely than not correct. I On the first point, the statutory language is quite clear. Section 78u-4(b)(2) states that "the complaint shall, with respect to each act or omission alleged to violate this chapter, state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." Thus, "a strong inference" of scienter must arise from those facts that are stated "with particularity." It follows that facts not stated with the requisite particularity cannot be considered in determining whether the strong-inference test is met. In dicta, however, the Court states that "omissions and ambiguities" merely "count against" inferring scienter, and that a court should consider all allegations of scienter, even nonparticularized ones, when considering whether a complaint meets the "strong inference" requirement. Ante, at 2511. Not only does this interpretation contradict the clear statutory language on this point, but it undermines the particularity requirement's purpose of preventing a plaintiff from using vague or general allegations in order to get by a motion to dismiss for failure to state a claim. Allowing a plaintiff to derive benefit from such allegations would permit him to circumvent this important provision. Furthermore, the Court's interpretation of the particularity requirement in no way distinguishes it from normal pleading review, under which a court naturally gives less weight to allegations containing "omissions and ambiguities" and more weight to allegations stating particularized facts. The particularity requirement is thus stripped of all meaning. Questions certainly may arise as to whether certain allegations meet the statutory particularity requirement, but where that requirement is violated, the offending allegations cannot be taken into account. II I would also hold that a "strong inference that the defendant acted with the required state of mind" is an inference that is stronger than the inference that the defendant lacked the required state of mind. Congress has provided very little guidance regarding the meaning of "strong inference," and the difference between the Court's interpretation (the inference of scienter must be at least as strong as the inference of no scienter) and Justice SCALIA's (the inference of scienter must be at least marginally stronger than the inference of no scienter) is unlikely to make any practical difference. The two approaches are similar in that they both regard the critical question as posing a binary choice (either the facts give rise to a "strong inference" of scienter or they do not). But Justice SCALIA's interpretation would align the pleading test under 78u-4(b)(2) with the test that is used at the summary-judgment and judgment-as-a-matter-of-law stages, whereas the Court's test would introduce a test previously unknown in civil litigation. It seems more likely that Congress meant to adopt a known quantity and thus to adopt Justice SCALIA's approach.

Justice Stevens

dissenting

Tellabs, Inc. v. Makor Issues & Rights, Ltd.

2007-06-21

https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/

https://www.courtlistener.com/api/rest/v3/clusters/145709/

2006-066

As the Court explains, when Congress enacted a heightened pleading requirement for private actions to enforce the federal securities laws, it "left the key term `strong inference' undefined." Ante, *2517 at 2504-2505. It thus implicitly delegated significant lawmaking authority to the Judiciary in determining how that standard should operate in practice. Today the majority crafts a perfectly workable definition of the term, but I am persuaded that a different interpretation would be both easier to apply and more consistent with the statute. The basic purpose of the heightened pleading requirement in the context of securities fraud litigation is to protect defendants from the costs of discovery and trial in unmeritorious cases. Because of its intrusive nature, discovery may also invade the privacy interests of the defendants and their executives. Like citizens suspected of having engaged in criminal activity, those defendants should not be required to produce their private effects unless there is probable cause to believe them guilty of misconduct. Admittedly, the probable-cause standard is not capable of precise measurement, but it is a concept that is familiar to judges. As a matter of normal English usage, its meaning is roughly the same as "strong inference." Moreover, it is most unlikely that Congress intended us to adopt a standard that makes it more difficult to commence a civil case than a criminal case.[1] In addition to the benefit of its grounding in an already familiar legal concept, using a probable-cause standard would avoid the unnecessary conclusion that "in determining whether the pleaded facts give rise to a `strong' inference of scienter, the court must take into account plausible opposing inferences." Ante, at 2509 (emphasis added). There are times when an inference can easily be deemed strong without any need to weigh competing inferences. For example, if a known drug dealer exits a building immediately after a confirmed drug transaction, carrying a suspicious looking package, a judge could draw a strong inference that the individual was involved in the aforementioned drug transaction without debating whether the suspect might have been leaving the building at that exact time for another unrelated reason. If, using that same methodology, we assume (as we must, see ante, at 2509-2510, 2511) the truth of the detailed factual allegations attributed to 27 different confidential informants described in the complaint, App. 91-93, and view those allegations collectively, I think it clear that they establish probable cause to believe that Tellabs' chief executive officer "acted with the required intent," as the Seventh Circuit held.[2] 437 F.3d 588, 602 (2006). *2518 Accordingly, I would affirm the judgment of the Court of Appeals.

As the Court explains, when Congress enacted a heightened pleading requirement for private actions to enforce the federal securities laws, it "left the key term `strong inference' undefined." Ante, *2517 at 2504-2505. It thus implicitly delegated significant lawmaking authority to the Judiciary in determining how that standard should operate in practice. Today the majority crafts a perfectly workable definition of the term, but I am persuaded that a different interpretation would be both easier to apply and more consistent with the statute. The basic purpose of the heightened pleading requirement in the context of securities fraud litigation is to protect defendants from the costs of discovery and trial in unmeritorious cases. Because of its intrusive nature, discovery may also invade the privacy interests of the defendants and their executives. Like citizens suspected of having engaged in criminal activity, those defendants should not be required to produce their private effects unless there is probable cause to believe them guilty of misconduct. Admittedly, the probable-cause standard is not capable of precise measurement, but it is a concept that is familiar to judges. As a matter of normal English usage, its meaning is roughly the same as "strong inference." Moreover, it is most unlikely that Congress intended us to adopt a standard that makes it more difficult to commence a civil case than a criminal case.[1] In addition to the benefit of its grounding in an already familiar legal concept, using a probable-cause standard would avoid the unnecessary conclusion that "in determining whether the pleaded facts give rise to a `strong' inference of scienter, the court must take into account plausible opposing inferences." Ante, at 2509 (emphasis added). There are times when an inference can easily be deemed strong without any need to weigh competing inferences. For example, if a known drug dealer exits a building immediately after a confirmed drug transaction, carrying a suspicious looking package, a judge could draw a strong inference that the individual was involved in the aforementioned drug transaction without debating whether the suspect might have been leaving the building at that exact time for another unrelated reason. If, using that same methodology, we assume (as we must, see ante, at 2509-2510, 2511) the truth of the detailed factual allegations attributed to 27 different confidential informants described in the complaint, App. 91-93, and view those allegations collectively, I think it clear that they establish probable cause to believe that Tellabs' chief executive officer "acted with the required intent," as the Seventh Circuit held.[2] *2518 Accordingly, I would affirm the judgment of the Court of Appeals.

Justice Thomas

majority

Harris Trust and Sav. Bank v. Salomon Smith Barney Inc.

2000-06-12

https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/

https://www.courtlistener.com/api/rest/v3/clusters/118375/

1999-075

Section 406(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 879, bars a fiduciary of an employee benefit plan from causing the plan to engage in certain transactions with a "party in interest." 29 U.S. C. § 1106(a). Section 502(a)(3) authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of ERISA Title I. 29 U.S. C. § 1132(a)(3). The question is whether that authorization extends to a suit against a nonfiduciary "party in interest" to a transaction barred by § 406(a). We hold that it does. I Responding to deficiencies in prior law regulating transactions by plan fiduciaries, Congress enacted ERISA § 406(a)(1), which supplements the fiduciary's general duty of *242 loyalty to the plan's beneficiaries, § 404(a), by categorically barring certain transactions deemed "likely to injure the pension plan," Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152, 160 (1993). Section 406(a)(1) provides, among other things, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect . . . sale or exchange . . . of any property between the plan and a party in interest." 29 U.S. C. § 1106(a)(1)(A). Congress defined "party in interest" to encompass those entities that a fiduciary might be inclined to favor at the expense of the plan's beneficiaries. See § 3(14), 29 U.S. C. § 1002(14). Section 406's prohibitions are subject to both statutory and regulatory exemptions. See §§ 408(a), (b), 29 U.S. C. §§ 1108(a), (b). This case comes to us on the assumption that an ERISA pension plan (the Ameritech Pension Trust (APT)) and a party in interest (respondent Salomon Smith Barney (Salomon)) entered into a transaction prohibited by § 406(a) and not exempted by § 408.[1] APT provides pension benefits to employees and retirees of Ameritech Corporation and its subsidiaries and affiliates. Salomon, during the late 1980's, provided broker-dealer services to APT, executing nondiscretionary equity trades at the direction of APT's fiduciaries, thus qualifying itself (we assume) as a "party in interest." See § 3(14)(B), 29 U.S. C. § 1002(14)(B) (defining "party in interest" as "a person providing services to [an employee benefit] plan"). During the same period, Salomon sold interests in several motel properties to APT for nearly $21 million. APT's purchase of the motel interests was directed by National Investment Services of America (NISA), an investment manager to which Ameritech had delegated investment *243 discretion over a portion of the plan's assets, and hence a fiduciary of APT, see § 3(21)(A)(i), 29 U.S. C. § 1002(21)(A)(i). This litigation arose when APT's fiduciaries—its trustee, petitioner Harris Trust and Savings Bank, and its administrator, petitioner Ameritech Corporation—discovered that the motel interests were nearly worthless. Petitioners maintain that the interests had been worthless all along; Salomon asserts, to the contrary, that the interests declined in value due to a downturn in the motel industry. Whatever the true cause, petitioners sued Salomon in 1992 under § 502(a)(3), which authorizes a "participant, beneficiary, or fiduciary" to bring a civil action "to enjoin any act or practice which violates any provision of [ERISA Title I] . . . or . . . to obtain other appropriate equitable relief . . . to redress such violations." 29 U.S. C. § 1132(a)(3). Petitioners claimed, among other things, that NISA, as plan fiduciary, had caused the plan to engage in a per se prohibited transaction under § 406(a) in purchasing the motel interests from Salomon, and that Salomon was liable on account of its participation in the transaction as a nonfiduciary party in interest. Specifically, petitioners pointed to § 406(a)(1)(A), 29 U.S. C. § 1106(a)(1)(A), which prohibits a "sale or exchange . . . of any property between the plan and a party in interest," and § 406(a)(1)(D), 29 U.S. C. § 1106(a)(1)(D), which prohibits a "transfer to . . . a party in interest . . . of any assets of the plan." Petitioners sought rescission of the transaction, restitution from Salomon of the purchase price with interest, and disgorgement of Salomon's profits made from use of the plan assets transferred to it. App. 41. Salomon moved for summary judgment, arguing that § 502(a)(3), when used to remedy a transaction prohibited by § 406(a), authorizes a suit only against the party expressly constrained by § 406(a)—the fiduciary who caused the plan to enter the transaction—and not against the counterparty to the transaction. See § 406(a)(1), 29 U.S. C. § 1106(a)(1) ("A *244 fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . ." (emphasis added)). The District Court denied the motion, holding that ERISA does provide a private cause of action against nonfiduciaries who participate in a prohibited transaction, but granted Salomon's subsequent motion for certification of the issue for interlocutory appeal under 28 U.S. C. § 1292(b). The Court of Appeals for the Seventh Circuit reversed. 184 F.3d 646 (1999). It began with the observation that § 406(a), by its terms and like several of its neighboring provisions, e. g., § 404, governs only the conduct of fiduciaries, not of counterparties or other nonfiduciaries. See id., at 650. The court next posited that "where ERISA does not expressly impose a duty, there can be no cause of action," ibid., relying upon dictum in our decision in Mertens v. Hewitt Associates, 508 U.S. 248, 254 (1993), that § 502(a)(3) does not provide a private cause of action against a nonfiduciary for knowing participation in a fiduciary's breach of duty. The Seventh Circuit saw no distinction between the Mertens situation (involving § 404) and the instant case (involving § 406), explaining that neither section expressly imposes a duty on nonfiduciaries. Finally, in the Seventh Circuit's view, Congress' decision to authorize the Secretary of Labor to impose a civil penalty on a nonfiduciary "party in interest" to a § 406 transaction, see § 502(i), simply confirms that Congress deliberately selected one enforcement tool (a civil penalty imposed by the Secretary) instead of another (a civil action under § 502(a)(3)). Accordingly, the Seventh Circuit held that a nonfiduciary cannot be liable under § 502(a)(3) for participating in a § 406 transaction and entered summary judgment in favor of Salomon. In doing so, the Seventh Circuit departed from the uniform position of the Courts of Appeals that § 502(a)(3)—and the similarly worded § 502(a)(5), which authorizes civil actions by the Secretary—does authorize a civil action against a nonfiduciary *245 who participates in a transaction prohibited by § 406(a)(1). See LeBlanc v. Cahill, 153 F.3d 134, 152-153 (CA4 1998) (§ 502(a)(3)); Landwehr v. DuPree, 72 F.3d 726, 734 (CA9 1995) (same); Herman v. South Carolina National Bank, 140 F.3d 1413, 1421-1422 (CA11 1998) (§ 502(a)(5)), cert. denied, 525 U.S. 1140 (1999); Reich v. Stangl, 73 F.3d 1027, 1032 (CA10) (same), cert. denied, 519 U.S. 807 (1996); Reich v. Compton, 57 F.3d 270, 287 (CA3 1995) (same). We granted certiorari, 528 U.S. 1068 (2000), and now reverse. II We agree with the Seventh Circuit's and Salomon's interpretation of § 406(a). They rightly note that § 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U.S. C. § 1106(a)(1) ("A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . ." (emphasis added)). We reject, however, the Seventh Circuit's and Salomon's conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfiduciary party may not be held liable under § 502(a)(3), one of ERISA's remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA's substantive provisions impose a specific duty on the party being sued.[2] *246 Section 502 provides: "(a) . . . "A civil action may be brought— . . . . . "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan." 29 U.S. C. § 1132(a)(3). This language, to be sure, "does not . . . authorize `appropriate equitable relief' at large, but only `appropriate equitable relief' for the purpose of `redress[ing any] violations or . . . enforc[ing] any provisions' of ERISA or an ERISA plan." Peacock v. Thomas, 516 U.S. 349, 353 (1996) (quoting Mertens, supra, at 253 (emphasis and alterations in original)). But § 502(a)(3) admits of no limit (aside from the "appropriate equitable relief" caveat, which we address infra) on the universe of possible defendants. Indeed, § 502(a)(3) makes no mention at all of which parties may be proper defendants—the focus, instead, is on redressing the "act or practice which violates any provision of [ERISA Title I]." 29 U.S. C. § 1132(a)(3) (emphasis added). Other provisions of ERISA, by contrast, do expressly address who may be a defendant. See, e. g., § 409(a), 29 U.S. C. § 1109(a) (stating that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally *247 liable" (emphasis added)); § 502(l), 29 U.S. C. § 1132(l) (authorizing imposition of civil penalties only against a "fiduciary" who violates part 4 of Title I or "any other person" who knowingly participates in such a violation). And § 502(a) itself demonstrates Congress' care in delineating the universe of plaintiffs who may bring certain civil actions. See, e. g., § 502(a)(3), 29 U.S. C. § 1132(a)(3) ("A civil action may be brought . . . by a participant, beneficiary, or fiduciary . . ." (emphasis added)); § 502(a)(5), 29 U.S. C. § 1132(a)(5) ("A civil action may be brought . . . by the Secretary . . ." (emphasis added)). In light of Congress' precision in these respects, we would ordinarily assume that Congress' failure to specify proper defendants in § 502(a)(3) was intentional. See Russello v. United States, 464 U.S. 16, 23 (1983). But ERISA's "`comprehensive and reticulated' " scheme warrants a cautious approach to inferring remedies not expressly authorized by the text, Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359, 361 (1980)), especially given the alternative and intuitively appealing interpretation, urged by Salomon, that § 502(a)(3) authorizes suits only against defendants upon whom a duty is imposed by ERISA's substantive provisions. In this case, however, § 502(l) resolves the matter—it compels the conclusion that defendant status under § 502(a)(3) may arise from duties imposed by § 502(a)(3) itself, and hence does not turn on whether the defendant is expressly subject to a duty under one of ERISA's substantive provisions. Section 502(l) provides in relevant part: "(1) In the case of— "(A) any breach of fiduciary responsibility under (or other violation of) part 4 of this subtitle by a fiduciary, or "(B) any knowing participation in such a breach or violation by any other person, *248 "the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount. "(2) For purposes of paragraph (1), the term `applicable recovery amount' means any amount which is recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1)— "(A) pursuant to any settlement agreement with the Secretary, or "(B) ordered by a court to be paid by such fiduciary or other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5) of this section." 29 U.S. C. §§ 1132(l)(1)—(2). Section 502(l) contemplates civil penalty actions by the Secretary against two classes of defendants, fiduciaries and "other person[s]." The latter class concerns us here. Paraphrasing, the Secretary shall assess a civil penalty against an "other person" who "knowing[ly] participat[es] in" "any . . . violation of . . . part 4 . . . by a fiduciary." And the amount of such penalty is defined by reference to the amount "ordered by a court to be paid by such . . . other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5). " Ibid. (emphasis added). The plain implication is that the Secretary may bring a civil action under § 502(a)(5) against an "other person" who "knowing[ly] participat[es]" in a fiduciary's violation; otherwise, there could be no "applicable recovery amount" from which to determine the amount of the civil penalty to be imposed on the "other person." This § 502(a)(5) action is available notwithstanding the absence of any ERISA provision explicitly imposing a duty upon an "other person" not to engage in such "knowing participation." And if the Secretary may bring suit against an "other person" under subsection (a)(5), it follows that a participant, beneficiary, or fiduciary *249 may bring suit against an "other person" under the similarly worded subsection (a)(3). See Mertens, 508 U. S., at 260. Section 502(l), therefore, refutes the notion that § 502(a)(3) (or (a)(5)) liability hinges on whether the particular defendant labors under a duty expressly imposed by the substantive provisions of ERISA Title I. Salomon invokes Mertens as articulating an alternative, more restrictive reading of § 502(l) that does not support the inference we have drawn. In Mertens, we suggested, in dictum, that the "other person[s]" in § 502(l) might be limited to the "cofiduciaries" made expressly liable under § 405(a) for knowingly participating in another fiduciary's breach of fiduciary responsibility. Id., at 261. So read, § 502(l) would be consistent with the view that liability under § 502(a)(3) depends entirely on whether the particular defendant violated a duty expressly imposed by the substantive provisions of ERISA Title I. But the Mertens dictum did not discuss— understandably, since we were merely flagging the issue, see 508 U.S., at 255, 260-261—that ERISA defines the term "person" without regard to status as a cofiduciary (or, for that matter, as a fiduciary or party in interest), see § 3(9), 29 U.S. C. § 1002(9). Moreover, § 405(a) indicates that a cofiduciary is itself a fiduciary, see § 405(a), 29 U.S. C. § 1105(a) ("[A] fiduciary . . . shall be liable for a breach of fiduciary responsibility of another fiduciary . . ."), and § 502(l) clearly distinguishes between a "fiduciary," § 502(l)(1)(A), 29 U.S. C. § 1132(l)(1)(A), and an "other person," § 502(l)(1)(B), 29 U.S. C. § 1132(l)(1)(B). III Notwithstanding the text of § 502(a)(3) (as informed by § 502(l)), Salomon protests that it would contravene common sense for Congress to have imposed civil liability on a party, such as a nonfiduciary party in interest to a § 406(a) transaction, that is not a "wrongdoer" in the sense of violating a duty expressly imposed by the substantive provisions of ERISA Title I. Salomon raises the specter of § 502(a)(3) *250 suits being brought against innocent parties—even those having no connection to the allegedly unlawful "act or practice"—rather than against the true wrongdoer, i. e., the fiduciary that caused the plan to engage in the transaction. But this reductio ad absurdum ignores the limiting principle explicit in § 502(a)(3): that the retrospective relief sought be "appropriate equitable relief." The common law of trusts, which offers a "starting point for analysis [of ERISA] . . . [unless] it is inconsistent with the language of the statute, its structure, or its purposes," Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 447 (1999) (internal quotation marks omitted), plainly countenances the sort of relief sought by petitioners against Salomon here. As petitioners and amicus curiae the United States observe, it has long been settled that when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person, the third person takes the property subject to the trust, unless he has purchased the property for value and without notice of the fiduciary's breach of duty. The trustee or beneficiaries may then maintain an action for restitution of the property (if not already disposed of) or disgorgement of proceeds (if already disposed of), and disgorgement of the third person's profits derived therefrom. See, e. g., Restatement (Second) of Trusts §§ 284, 291, 294, 295, 297 (1957); 4 A. Scott & W. Fratcher, Law of Trusts § 284, § 291.1, pp. 77-78, § 294.2, p. 101, § 297 (4th ed. 1989) (hereinafter Law of Trusts); 5 id., § 470, at 363; 1 D. Dobbs, Law of Remedies § 4.7(1), pp. 660-661 (2d ed. 1993); G. Bogert, Law of Trusts and Trustees § 866, pp. 95-96 (rev. 2d ed. 1995). As we long ago explained in the analogous situation of property obtained by fraud: "Whenever the legal title to property is obtained through means or under circumstances `which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of *251 the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the property relieved from the trust.' " Moore v. Crawford, 130 U.S. 122, 128 (1889) (quoting 2 J. Pomeroy, Equity Jurisprudence § 1053, pp. 628-629 (1886)). Importantly, that a transferee was not "the original wrongdoer" does not insulate him from liability for restitution. See also, e. g., Restatement of Restitution ch. 7, Introductory Note, p. 522 (1937); 1 Dobbs, supra, § 4.3(2), at 597 ("The constructive trust is based on property, not wrongs"). It also bears emphasis that the common law of trusts sets limits on restitution actions against defendants other than the principal "wrongdoer." Only a transferee of ill-gotten trust assets may be held liable, and then only when the transferee (assuming he has purchased for value) knew or should have known of the existence of the trust and the circumstances that rendered the transfer in breach of the trust. Translated to the instant context, the transferee must be demonstrated to have had actual or constructive knowledge of the circumstances that rendered the transaction unlawful. Those circumstances, in turn, involve a showing that the plan fiduciary, with actual or constructive knowledge of the facts satisfying the elements of a § 406(a) transaction, caused the plan to engage in the transaction. Lockheed Corp. v. Spink, 517 U.S. 882, 888-889 (1996).[3] *252 The common law additionally leads us to reject Salomon's complaint that our view of § 502(a)(3) would incongruously allow not only the harmed beneficiaries, but also the culpable fiduciary, to seek restitution from the arguably less culpable counterparty-transferee. The common law sees no incongruity in such a rule, see Restatement (Second) of Trusts, supra, § 294, at 69 ("[A]n action can be maintained against the transferee either by the beneficiary or the trustee"); 4 Law of Trusts § 294.2, at 101, and for good reason: "Although the trustee bases his cause of action upon his own voluntary act, and even though the act was knowingly done in breach of his duty to the beneficiary, he is permitted to maintain the action, since the purpose of the action is to recover money or other property for the trust estate, and whatever he recovers he will hold subject to the trust." Restatement (Second) of Trusts, supra, § 294, Comment c. But Salomon advances a more fundamental critique of the common-law analogy, reasoning that the antecedent violation here—a violation of § 406(a)'s per se prohibitions on transacting with a party in interest—was unknown at common law, and that common-law liability should not attach to an act that does not violate a common-law duty. While Salomon accurately characterizes § 406(a) as expanding upon the common law's arm's-length standard of conduct, see Keystone Consol. Industries, 508 U. S., at 160, we reject Salomon's unsupported suggestion that remedial principles of the common law are tethered to the precise contours of commonlaw duty. We note, however, that our interpretation of § 502(a)(3) to incorporate common-law remedial principles does not necessarily foreclose accommodation of Salomon's underlying concern that ERISA should not be construed to require counterparties to transactions with a plan to monitor the plan for compliance with each of ERISA's intricate details. See, e. g., Prohibited Transaction Exemption 75-1, § II(e), 40 Fed. Reg. 50847 (1975) (requiring that the plan maintain certain *253 records for a 6-year period). While we have no occasion to decide the matter here, it may be that such concerns should inform courts' determinations of what a transferee should (or should not) be expected to know when engaging in a transaction with a fiduciary. See Restatement (Second) of Trusts § 297(a), at 74 (defining "notice" to mean what a transferee "knows or should know" (emphasis added)). Cf. Prohibited Transaction Exemption 75-1, § II(e)(1), 40 Fed. Reg. 50847 (1975) (providing that a broker-dealer shall not be subject to civil penalties under § 502(i) as a § 406(a) "party in interest" or taxes under 26 U.S. C. § 4975 as a similarly defined "disqualified person" if such records are not maintained by the plan). For these reasons, an action for restitution against a transferee of tainted plan assets satisfies the "appropriate[ness]" criterion in § 502(a)(3). Such relief is also "equitable" in nature. See Mertens, 508 U. S., at 260 ("[T]he `equitable relief' awardable under § 502(a)(5) includes restitution of ill-gotten plan assets or profits . . ."); ibid. (explaining that, in light of the similarity of language in §§ 502(a)(3) and (5), that language should be deemed to have the same meaning in both subsections). IV We turn, finally, to two nontextual clues cited by Salomon and amici. First, Salomon urges us to consider, as the Seventh Circuit did, 184 F.3d, at 652-653, the Conference Committee's rejection of language from the Senate bill that would have expressly imposed a duty on nonfiduciary parties to § 406(a) transactions. See Brief for Respondents 28-29 (quoting H. R. Rep. No. 93-2, p. 533 (1974) (with amendments as passed by the Senate), reprinted in 3 Legislative History of ERISA (Committee Print compiled for the Senate Subcommittee on Labor of the Committee on Labor and Public Welfare by the Library of Congress), Ser. No. 93-406, p. 3780 (1976) (staff comment on House and Senate differences on § 409)); 3 Legislative History of ERISA, supra, at 5259 (staff *254 comment on House and Senate differences on § 409). Second, Salomon and amici submit that the policy consequences of recognizing a § 502(a)(3) action in this case could be devastating—counterparties, faced with the prospect of liability for dealing with a plan, may charge higher rates or, worse, refuse altogether to transact with plans. We decline these suggestions to depart from the text of § 502(a)(3). In ERISA cases, "[a]s in any case of statutory construction, our analysis begins with the language of the statute. . . . And where the statutory language provides a clear answer, it ends there as well." Hughes Aircraft, 525 U. S., at 438 (citation and internal quotation marks omitted). Section 502(a)(3), as informed by § 502(l), satisfies this standard. Accordingly, we reverse the Seventh Circuit's judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.

Section 406(a) of the Employee Retirement Income Security Act of 1974 (), bars a fiduciary of an employee benefit plan from causing the plan to engage in certain transactions with a "party in interest." 29 U.S. C. 1106(a). Section 502(a)(3) authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of Title I. 29 U.S. C. 1132(a)(3). The question is whether that authorization extends to a suit against a nonfiduciary "party in interest" to a transaction barred by 406(a). We hold that it does. I Responding to deficiencies in prior law regulating transactions by plan fiduciaries, Congress enacted 406(a)(1), which supplements the fiduciary's general duty of *242 loyalty to the plan's beneficiaries, 404(a), by categorically barring certain transactions deemed "likely to injure the pension plan," Section 406(a)(1) provides, among other things, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect sale or exchange of any property between the plan and a party in interest." 29 U.S. C. 1106(a)(1)(A). Congress defined "party in interest" to encompass those entities that a fiduciary might be inclined to favor at the expense of the plan's beneficiaries. See 3(14), 29 U.S. C. 1002(14). Section 406's prohibitions are subject to both statutory and regulatory exemptions. See 408(a), (b), 29 U.S. C. 1108(a), (b). This case comes to us on the assumption that an pension plan (the Ameritech Pension Trust (APT)) and a party in interest (respondent Salomon Smith Barney (Salomon)) entered into a transaction prohibited by 406(a) and not exempted by 408.[1] APT provides pension benefits to employees and retirees of Ameritech Corporation and its subsidiaries and affiliates. Salomon, during the late 1980's, provided broker-dealer services to APT, executing nondiscretionary equity trades at the direction of APT's fiduciaries, thus qualifying itself (we assume) as a "party in interest." See 3(14)(B), 29 U.S. C. 1002(14)(B) (defining "party in interest" as "a person providing services to [an employee benefit] plan"). During the same period, Salomon sold interests in several motel properties to APT for nearly $21 million. APT's purchase of the motel interests was directed by National Investment Services of America (NISA), an investment manager to which Ameritech had delegated investment *243 discretion over a portion of the plan's assets, and hence a fiduciary of APT, see 3(21)(A)(i), 29 U.S. C. 1002(21)(A)(i). This litigation arose when APT's fiduciaries—its trustee, petitioner Harris Trust and Savings Bank, and its administrator, petitioner Ameritech Corporation—discovered that the motel interests were nearly worthless. Petitioners maintain that the interests had been worthless all along; Salomon asserts, to the contrary, that the interests declined in value due to a downturn in the motel industry. Whatever the true cause, petitioners sued Salomon in 1992 under 502(a)(3), which authorizes a "participant, beneficiary, or fiduciary" to bring a civil action "to enjoin any act or practice which violates any provision of [ Title I] or to obtain other appropriate equitable relief to redress such violations." 29 U.S. C. 1132(a)(3). Petitioners claimed, among other things, that NISA, as plan fiduciary, had caused the plan to engage in a per se prohibited transaction under 406(a) in purchasing the motel interests from Salomon, and that Salomon was liable on account of its participation in the transaction as a nonfiduciary party in interest. Specifically, petitioners pointed to 406(a)(1)(A), 29 U.S. C. 1106(a)(1)(A), which prohibits a "sale or exchange of any property between the plan and a party in interest," and 406(a)(1)(D), 29 U.S. C. 1106(a)(1)(D), which prohibits a "transfer to a party in interest of any assets of the plan." Petitioners sought rescission of the transaction, restitution from Salomon of the purchase price with interest, and disgorgement of Salomon's profits made from use of the plan assets transferred to it. App. 41. Salomon moved for summary judgment, arguing that 502(a)(3), when used to remedy a transaction prohibited by 406(a), authorizes a suit only against the party expressly constrained by 406(a)—the fiduciary who caused the plan to enter the transaction—and not against the counterparty to the transaction. See 406(a)(1), 29 U.S. C. 1106(a)(1) ("A *244 fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction" ). The District Court denied the motion, holding that does provide a private cause of action against nonfiduciaries who participate in a prohibited transaction, but granted Salomon's subsequent motion for certification of the issue for interlocutory appeal under 28 U.S. C. 1292(b). The Court of Appeals for the Seventh Circuit reversed. It began with the observation that 406(a), by its terms and like several of its neighboring provisions, e. g., 404, governs only the conduct of fiduciaries, not of counterparties or other nonfiduciaries. See The court next posited that "where does not expressly impose a duty, there can be no cause of action," ib relying upon dictum in our decision in that 502(a)(3) does not provide a private cause of action against a nonfiduciary for knowing participation in a fiduciary's breach of duty. The Seventh Circuit saw no distinction between the situation (involving 404) and the instant case (involving 406), explaining that neither section expressly imposes a duty on nonfiduciaries. Finally, in the Seventh Circuit's view, Congress' decision to authorize the Secretary of Labor to impose a civil penalty on a nonfiduciary "party in interest" to a 406 transaction, see 502(i), simply confirms that Congress deliberately selected one enforcement tool (a civil penalty imposed by the Secretary) instead of another (a civil action under 502(a)(3)). Accordingly, the Seventh Circuit held that a nonfiduciary cannot be liable under 502(a)(3) for participating in a 406 transaction and entered summary judgment in favor of Salomon. In doing so, the Seventh Circuit departed from the uniform position of the Courts of Appeals that 502(a)(3)—and the similarly worded 502(a)(5), which authorizes civil actions by the Secretary—does authorize a civil action against a nonfiduciary *245 who participates in a transaction prohibited by 406(a)(1). See ( 502(a)(3)); ; ( 502(a)(5)), cert. denied, ; (CA10) cert. denied, ; We granted certiorari, and now reverse. II We agree with the Seventh Circuit's and Salomon's interpretation of 406(a). They rightly note that 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction. See 406(a)(1), 29 U.S. C. 1106(a)(1) ("A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction" ). We reject, however, the Seventh Circuit's and Salomon's conclusion that, absent a substantive provision of expressly imposing a duty upon a nonfiduciary party in interest, the nonfiduciary party may not be held liable under 502(a)(3), one of 's remedial provisions. Petitioners contend, and we agree, that 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether 's substantive provisions impose a specific duty on the party being sued.[2] *246 Section 502 provides: "(a) "A civil action may be brought— "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan." 29 U.S. C. 1132(a)(3). This language, to be sure, "does not authorize `appropriate equitable relief' at large, but only `appropriate equitable relief' for the purpose of `redress[ing any] violations or enforc[ing] any provisions' of or an plan." But 502(a)(3) admits of no limit (aside from the "appropriate equitable relief" caveat, which we address infra) on the universe of possible defendants. Indeed, 502(a)(3) makes no mention at all of which parties may be proper defendants—the focus, instead, is on redressing the "act or practice which violates any provision of [ Title I]." 29 U.S. C. 1132(a)(3) Other provisions of by contrast, do expressly address who may be a defendant. See, e. g., 409(a), 29 U.S. C. 1109(a) (stating that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally *247 liable" ); 502(l), 29 U.S. C. 1132(l) (authorizing imposition of civil penalties only against a "fiduciary" who violates part 4 of Title I or "any other person" who knowingly participates in such a violation). And 502(a) itself demonstrates Congress' care in delineating the universe of plaintiffs who may bring certain civil actions. See, e. g., 502(a)(3), 29 U.S. C. 1132(a)(3) ("A civil action may be brought by a participant, beneficiary, or fiduciary" ); 502(a)(5), 29 U.S. C. 1132(a)(5) ("A civil action may be brought by the Secretary" ). In light of Congress' precision in these respects, we would ordinarily assume that Congress' failure to specify proper defendants in 502(a)(3) was intentional. See But 's "`comprehensive and reticulated' " scheme warrants a cautious approach to inferring remedies not expressly authorized by the text, Massachusetts Mut. Life Ins. especially given the alternative and intuitively appealing interpretation, urged by Salomon, that 502(a)(3) authorizes suits only against defendants upon whom a duty is imposed by 's substantive provisions. In this case, however, 502(l) resolves the matter—it compels the conclusion that defendant status under 502(a)(3) may arise from duties imposed by 502(a)(3) itself, and hence does not turn on whether the defendant is expressly subject to a duty under one of 's substantive provisions. Section 502(l) provides in relevant part: "(1) In the case of— "(A) any breach of fiduciary responsibility under (or other violation of) part 4 of this subtitle by a fiduciary, or "(B) any knowing participation in such a breach or violation by any other person, *248 "the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount. "(2) For purposes of paragraph (1), the term `applicable recovery amount' means any amount which is recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1)— "(A) pursuant to any settlement agreement with the Secretary, or "(B) ordered by a court to be paid by such fiduciary or other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5) of this section." 29 U.S. C. 1132(l)(1)—(2). Section 502(l) contemplates civil penalty actions by the Secretary against two classes of defendants, fiduciaries and "other person[s]." The latter class concerns us here. Paraphrasing, the Secretary shall assess a civil penalty against an "other person" who "knowing[ly] participat[es] in" "any violation of part 4 by a fiduciary." And the amount of such penalty is defined by reference to the amount "ordered by a court to be paid by such other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5). " The plain implication is that the Secretary may bring a civil action under 502(a)(5) against an "other person" who "knowing[ly] participat[es]" in a fiduciary's violation; otherwise, there could be no "applicable recovery amount" from which to determine the amount of the civil penalty to be imposed on the "other person." This 502(a)(5) action is available notwithstanding the absence of any provision explicitly imposing a duty upon an "other person" not to engage in such "knowing participation." And if the Secretary may bring suit against an "other person" under subsection (a)(5), it follows that a participant, beneficiary, or fiduciary *249 may bring suit against an "other person" under the similarly worded subsection (a)(3). See Section 502(l), therefore, refutes the notion that 502(a)(3) (or (a)(5)) liability hinges on whether the particular defendant labors under a duty expressly imposed by the substantive provisions of Title I. Salomon invokes as articulating an alternative, more restrictive reading of 502(l) that does not support the inference we have drawn. In we suggested, in dictum, that the "other person[s]" in 502(l) might be limited to the "cofiduciaries" made expressly liable under 405(a) for knowingly participating in another fiduciary's breach of fiduciary responsibility. So read, 502(l) would be consistent with the view that liability under 502(a)(3) depends entirely on whether the particular defendant violated a duty expressly imposed by the substantive provisions of Title I. But the dictum not discuss— understandably, since we were merely flagging the issue, see 260-261—that defines the term "person" without regard to status as a cofiduciary (or, for that matter, as a fiduciary or party in interest), see 3(9), 29 U.S. C. 1002(9). Moreover, 405(a) indicates that a cofiduciary is itself a fiduciary, see 405(a), 29 U.S. C. 1105(a) ("[A] fiduciary shall be liable for a breach of fiduciary responsibility of another fiduciary"), and 502(l) clearly distinguishes between a "fiduciary," 502(l)(1)(A), 29 U.S. C. 1132(l)(1)(A), and an "other person," 502(l)(1)(B), 29 U.S. C. 1132(l)(1)(B). III Notwithstanding the text of 502(a)(3) (as informed by 502(l)), Salomon protests that it would contravene common sense for Congress to have imposed civil liability on a party, such as a nonfiduciary party in interest to a 406(a) transaction, that is not a "wrongdoer" in the sense of violating a duty expressly imposed by the substantive provisions of Title I. Salomon raises the specter of 502(a)(3) *250 suits being brought against innocent parties—even those having no connection to the allegedly unlawful "act or practice"—rather than against the true wrongdoer, i. e., the fiduciary that caused the plan to engage in the transaction. But this reductio ad absurdum ignores the limiting principle explicit in 502(a)(3): that the retrospective relief sought be "appropriate equitable relief." The common law of trusts, which offers a "starting point for analysis [of ] [unless] it is inconsistent with the language of the statute, its structure, or its purposes," Hughes plainly countenances the sort of relief sought by petitioners against Salomon here. As petitioners and amicus curiae the United States observe, it has long been settled that when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person, the third person takes the property subject to the trust, unless he has purchased the property for value and without notice of the fiduciary's breach of duty. The trustee or beneficiaries may then maintain an action for restitution of the property (if not already disposed of) or disgorgement of proceeds (if already disposed of), and disgorgement of the third person's profits derived therefrom. See, e. g., Restatement (Second) of 284, 291, 294, 295, 297 (1957); 4 A. Scott & W. Fratcher, Law of 284, 291.1, pp. 77-78, 294.2, p. 101, 297 (4th ed. 1989) (hereinafter Law of ); 5 470, at 363; 1 D. Law of Remedies 4.7(1), pp. 660-661 ; G. Bogert, Law of and Trustees 866, pp. 95-96 As we long ago explained in the analogous situation of property obtained by fraud: "Whenever the legal title to property is obtained through means or under circumstances `which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of *251 the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the property relieved from the trust.' " (quoting 2 J. Pomeroy, Equity Jurisprudence 1053, pp. 628-629 (1886)). Importantly, that a transferee was not "the original wrongdoer" does not insulate him from liability for restitution. See also, e. g., Restatement of Restitution ch. 7, Introductory Note, p. 522 (1937); 1 4.3(2), at 597 ("The constructive trust is based on property, not wrongs"). It also bears emphasis that the common law of trusts sets limits on restitution actions against defendants other than the principal "wrongdoer." Only a transferee of ill-gotten trust assets may be held liable, and then only when the transferee (assuming he has purchased for value) knew or should have known of the existence of the trust and the circumstances that rendered the transfer in breach of the trust. Translated to the instant context, the transferee must be demonstrated to have had actual or constructive knowledge of the circumstances that rendered the transaction unlawful. Those circumstances, in turn, involve a showing that the plan fiduciary, with actual or constructive knowledge of the facts satisfying the elements of a 406(a) transaction, caused the plan to engage in the transaction. Lockheed[3] *252 The common law additionally leads us to reject Salomon's complaint that our view of 502(a)(3) would incongruously allow not only the harmed beneficiaries, but also the culpable fiduciary, to seek restitution from the arguably less culpable counterparty-transferee. The common law sees no incongruity in such a rule, see Restatement (Second) of 294, at 69 ("[A]n action can be maintained against the transferee either by the beneficiary or the trustee"); 4 Law of 294.2, at 101, and for good reason: "Although the trustee bases his cause of action upon his own voluntary act, and even though the act was knowingly done in breach of his duty to the beneficiary, he is permitted to maintain the action, since the purpose of the action is to recover money or other property for the trust estate, and whatever he recovers he will hold subject to the trust." Restatement (Second) of 294, Comment c. But Salomon advances a more fundamental critique of the common-law analogy, reasoning that the antecedent violation here—a violation of 406(a)'s per se prohibitions on transacting with a party in interest—was unknown at common law, and that common-law liability should not attach to an act that does not violate a common-law duty. While Salomon accurately characterizes 406(a) as expanding upon the common law's arm's-length standard of conduct, see Keystone Consol. 508 U. S., at we reject Salomon's unsupported suggestion that remedial principles of the common law are tethered to the precise contours of commonlaw duty. We note, however, that our interpretation of 502(a)(3) to incorporate common-law remedial principles does not necessarily foreclose accommodation of Salomon's underlying concern that should not be construed to require counterparties to transactions with a plan to monitor the plan for compliance with each of 's intricate details. See, e. g., Prohibited Transaction Exemption 75-1, II(e), (1975) While we have no occasion to decide the matter here, it may be that such concerns should inform courts' determinations of what a transferee should (or should not) be expected to know when engaging in a transaction with a fiduciary. See Restatement (Second) of 297(a), at 74 (defining "notice" to mean what a transferee "knows or should know" ). Cf. Prohibited Transaction Exemption 75-1, II(e)(1), (1975) (providing that a broker-dealer shall not be subject to civil penalties under 502(i) as a 406(a) "party in interest" or taxes under 26 U.S. C. 4975 as a similarly defined "disqualified person" if such records are not maintained by the plan). For these reasons, an action for restitution against a transferee of tainted plan assets satisfies the "appropriate[ness]" criterion in 502(a)(3). Such relief is also "equitable" in nature. See ("[T]he `equitable relief' awardable under 502(a)(5) includes restitution of ill-gotten plan assets or profits"); (explaining that, in light of the similarity of language in 502(a)(3) and (5), that language should be deemed to have the same meaning in both subsections). IV We turn, finally, to two nontextual clues cited by Salomon and amici. First, Salomon urges us to consider, as the Seventh Circuit -653, the Conference Committee's rejection of language from the Senate bill that would have expressly imposed a duty on nonfiduciary parties to 406(a) transactions. See Brief for Respondents 28-29 (quoting H. R. Rep. No. 93-2, p. 533 (1974) (with amendments as passed by the Senate), reprinted in 3 Legislative History of (Committee Print compiled for the Senate Subcommittee on Labor of the Committee on Labor and Public Welfare by the Library of Congress), Ser. No. 93-406, p. 3780 (1976) (staff comment on House and Senate differences on 409)); 3 Legislative History of (staff * comment on House and Senate differences on 409). Second, Salomon and amici submit that the policy consequences of recognizing a 502(a)(3) action in this case could be devastating—counterparties, faced with the prospect of liability for dealing with a plan, may charge higher rates or, worse, refuse altogether to transact with plans. We decline these suggestions to depart from the text of 502(a)(3). In cases, "[a]s in any case of statutory construction, our analysis begins with the language of the statute. And where the statutory language provides a clear answer, it ends there as well." Hughes Section 502(a)(3), as informed by 502(l), satisfies this standard. Accordingly, we reverse the Seventh Circuit's judgment and remand the case for further proceedings consistent with this opinion. It is so ordered.

Justice Ginsburg

majority

United States v. Navajo Nation

2003-03-04

https://www.courtlistener.com/opinion/122264/united-states-v-navajo-nation/

https://www.courtlistener.com/api/rest/v3/clusters/122264/

2002-025

This case concerns the Indian Mineral Leasing Act of 1938 (IMLA), 52 Stat. 347, 25 U.S. C. § 396a et seq., and the role it assigns to the Secretary of the Interior (Secretary) with respect to coal leases executed by an Indian Tribe and a private lessee. The controversy centers on 1987 amendments to a 1964 coal lease entered into by the predecessor of Peabody Coal Company (Peabody) and the Navajo Nation (Tribe), a federally recognized Indian Tribe. The Tribe seeks to recover money damages from the United States for an alleged breach of trust in connection with the Secretary's approval of coal lease amendments negotiated by the Tribe and Peabody. This Court's decisions in United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I), and United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II), control this case. Concluding that the controversy here falls within Mitchell I's domain, we hold that the Tribe's claim for compensation from the Federal Government fails, for it does not derive from any liability-imposing provision of the IMLA or its implementing regulations. I A The IMLA, which governs aspects of mineral leasing on Indian tribal lands, states that "unallotted lands within any Indian reservation," or otherwise under federal jurisdiction, "may, with the approval of the Secretary ..., be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." § 396a. In addition "to provid[ing] Indian tribes with a profitable source of revenue," Cotton Petroleum Corp. v. New Mexico, 490 U.S. *494 163, 179 (1989), the IMLA aimed to foster tribal self-determination by "giv[ing] Indians a greater say in the use and disposition of the resources found on Indian lands," BHP Minerals Int'l Inc., 139 I. B. L. A. 269, 311 (1997). Prior to enactment of the IMLA, decisions whether to grant mineral leases on Indian land generally rested with the Government. See, e. g., Act of June 30, 1919, ch. 4, § 26, 41 Stat. 31, as amended, 25 U.S. C. § 399; see also infra, at 509 (describing § 399). Indian consent was not required, and leases were sometimes granted over tribal objections. See H. R. Rep. No. 1872, 75th Cong., 3d Sess., 2 (1938); S. Rep. No. 985, 75th Cong., 1st Sess., 2 (1937); 46 Fed. Cl. 217, 230 (2000). The IMLA, designed to advance tribal independence, empowers Tribes to negotiate mining leases themselves, and, as to coal leasing, assigns primarily an approval role to the Secretary. Although the IMLA covers mineral leasing generally, in a number of discrete provisions it deals particularly with oil and gas leases. See 25 U.S.C. § 396b (requirements for public auctions of oil and gas leases); § 396d (oil and gas leases are "subject to the terms of any reasonable cooperative unit or other plan approved or prescribed by [the] Secretary"); § 396g ("[T]o avoid waste or to promote the conservation of natural resources or the welfare of the Indians," the Secretary may approve leases of Indian lands "for the subsurface storage of oil and gas."). The IMLA contains no similarly specific prescriptions for coal leases; it simply remits coal leases, in common with all mineral leases, to the governance of rules and regulations promulgated by the Secretary. § 396d. During all times relevant here, the IMLA regulations provided that "Indian tribes ... may, with the approval of the Secretary ... or his authorized representative, lease their land for mining purposes." 25 CFR § 211.2 (1985). In line with the IMLA itself, the regulations treated oil and gas leases in more detail than coal leases. The regulations regarding *495 royalties, for example, specified procedures applicable to oil and gas leases, including criteria for the Secretary to employ in setting royalty rates. §§ 211.13, 211.16, 211.17. As to coal royalties, in contrast, the regulations required only that the rate be "not less than 10 cents per ton." § 211.15(c). No other limitation was placed on the Tribe's negotiating capacity or the Secretary's approval authority.[1] B The Tribe involved in this case occupies the largest Indian reservation in the United States. Over the past century, large deposits of coal have been discovered on the Tribe's reservation lands, which are held for it in trust by the United States. Each year, the Tribe receives millions of dollars in royalty payments pursuant to mineral leases with private companies. Peabody mines coal on the Tribe's lands pursuant to leases covered by the IMLA. This case principally concerns Lease 8580 (Lease or Lease 8580), which took effect upon approval by the Secretary in 1964. App. 188-220. The Lease established a maximum royalty rate of 37.5 cents per ton of coal, id., at 191, but made that figure "subject to reasonable adjustment by the Secretary of the Interior or his authorized representative" on the 20-year anniversary of the Lease and every ten years thereafter, id., at 194. As the 20-year anniversary of Lease 8580 approached, its royalty rate of 37.5 cents per ton yielded for the Tribe only "about 2% of gross proceeds." 263 F.3d 1325, 1327 (CA Fed. 2001). This return was higher than the ten cents per ton minimum established by the then-applicable IMLA regulations. *496 See 25 CFR § 211.15(c) (1985). It was substantially lower, however, than the 12½ percent of gross proceeds rate Congress established in 1977 as the minimum permissible royalty for coal mined on federal lands under the Mineral Leasing Act. See Pub. L. 94-377, § 6, 90 Stat. 1087, as amended, 30 U.S. C. § 207(a). For some years starting in the 1970's, to gain a more favorable return, the Tribe endeavored to renegotiate existing mineral leases with private lessees, including Peabody. See App. 138-139, 143-144. In March 1984, the Chairman of the Navajo Tribal Council wrote to the Secretary asking him to exercise his contractually conferred authority to adjust the royalty rate under Lease 8580. On June 18, 1984, the Director of the Bureau of Indian Affairs for the Navajo Area, acting pursuant to authority delegated by the Secretary, sent Peabody an opinion letter raising the rate to 20 percent of gross proceeds. Id., at 8-9. Contesting the Area Director's rate determination, Peabody filed an administrative appeal in July 1984, pursuant to 25 CFR § 2.3(a) (1985). 46 Fed. Cl., at 222.[2] The appeal was referred to the Deputy Assistant Secretary for Indian Affairs, John Fritz, then acting as both Commissioner of Indian Affairs and Assistant Secretary of Indian Affairs, 263 F.3d, at 1328. In March 1985, Fritz permitted Peabody to supplement its brief and requested additional cost, revenue, and investment data. 46 Fed. Cl., at 222. He thereafter appeared ready to reject Peabody's appeal. Ibid.; App. 89-97 (undated draft letter). By June 1985, both Peabody and the Tribe anticipated that an announcement favorable to the Tribe was imminent. Id., at 98-99.[3] *497 On July 5, 1985, a Peabody Vice President wrote to Interior Secretary Donald Hodel, asking him either to postpone decision on Peabody's appeal so the parties could seek a negotiated settlement, or to rule in Peabody's favor. Id., at 98-100. A copy of Peabody's letter was sent to the Tribe, id., at 100, which then submitted its own letter urging the Secretary to reject Peabody's request and to secure the Department's prompt release of a decision in the Tribe's favor, id., at 119-121. Peabody representatives met privately with Secretary Hodel in July 1985, 46 Fed. Cl., at 222; no representative of the Tribe was present at, or received notice of, that meeting, id., at 219. On July 17, 1985, Secretary Hodel sent a memorandum to Deputy Assistant Secretary Fritz. App. 117-118. The memorandum "suggest[ed]" that Fritz "inform the involved parties that a decision on th[e] appeal is not imminent and urge them to continue with efforts to resolve this matter in a mutually agreeable fashion." Id., at 117. "Any royalty adjustment which is imposed on those parties without their concurrence," the memorandum stated, "will almost certainly be the subject of protracted and costly appeals," and "could well impair the future of the contractual relationship" *498 between the parties. Ibid.[4] Secretary Hodel added, however, that the memorandum was "not intended as a determination of the merits of the arguments of the parties with respect to the issues which are subject to the appeal." Id., at 118. The Tribe was not told of the Secretary's memorandum to Fritz, but learned that "`someone from Washington' had urged a return to the bargaining table." 46 Fed. Cl., at 223; see App. 342-344. Facing "severe economic pressure," 263 F.3d, at 1328; App. 355-356, the Tribe resumed negotiations with Peabody in August 1985, 46 Fed. Cl., at 223. On September 23, 1985, the parties reached a tentative agreement on a package of amendments to Lease 8580. Ibid.[5] They agreed to raise the royalty rate to 12½ percent of monthly gross proceeds, and to make the new rate retroactive to February 1, 1984. App. 287. The 12½ percent rate was at the time customary for leases to mine coal on federal lands and on Indian lands.[6] The amendments acknowledged *499 the legitimacy of tribal taxation of coal production, but stipulated that the tax rate would be capped at eight percent. Id., at 295, 299.[7] In addition, Peabody agreed to pay the *500 Tribe $1.5 million when the amendments became effective, and $7.5 million more when Peabody began mining additional coal, as authorized by the Lease amendments. Id., at 292-293. The agreement "also addressed ancillary matters such as provisions for future royalty adjustments, arbitration procedures, rights of way, the establishment of a tribal scholarship fund, and the payment by Peabody of back royalties, bonuses, and water payments." 46 Fed. Cl., at 224. "In consideration of the benefits associated with these lease amendments," the parties agreed to move jointly to vacate the Area Director's June 1984 decision, which had raised the royalty to 20 percent. App. 286. In August 1987, the Navajo Tribal Council approved the amendments. 46 Fed. Cl., at 224. The parties signed a final agreement in November 1987, App. 309, and Secretary Hodel approved it on December 14, 1987, id., at 337-339. Shortly thereafter, pursuant to the parties' stipulation, the Area Director's decision was vacated. 46 Fed. Cl., at 224. In 1993, the Tribe brought suit against the United States in the Court of Federal Claims, alleging, inter alia, that the Secretary's approval of the amendments to the Lease constituted a breach of trust. The Tribe sought $600 million in damages.[8] *501 The Court of Federal Claims granted summary judgment for the United States. 46 Fed. Cl. 217 (2000). In no uncertain terms, that court found that the Government owed general fiduciary duties to the Tribe, which, in its view, the Secretary had flagrantly dishonored by acting in the best interests of Peabody rather than the Tribe. Nevertheless, the court concluded that the Tribe had entirely failed to link that breach of duty to any statutory or regulatory obligation which could "be fairly interpreted as mandating compensation for the government's fiduciary wrongs." Id., at 236. Accordingly, the court held that the United States was entitled to judgment as a matter of law.[9] The Court of Appeals for the Federal Circuit reversed. 263 F.3d 1325 (2001). The Government's liability to the Tribe, it said, turned on whether "the United States controls the Indian resources." Id., at 1329. Relying on 25 U.S.C. § 399 and regulations promulgated thereunder, the Court of Appeals determined that the measure of control the Secretary exercised over the leasing of Indian lands for mineral development sufficed to warrant a money judgment against the United States for breaches of fiduciary duties connected to coal leasing. 263 F.3d, at 1330-1332. But see infra, at 509. The appeals court agreed with the Federal Claims Court that the Secretary's actions regarding Peabody's administrative appeal violated the Government's fiduciary obligations to the Tribe, in that those actions "suppress[ed] and conceal[ed]" the decision of the Deputy Assistant Secretary, and "thereby favor[ed] Peabody interests to the detriment of Navajo interests." 263 F.3d, at 1332. Based on these *502 determinations, the Court of Appeals remanded for further proceedings, including a determination of damages. Id., at 1333. Judge Schall concurred in part and dissented in part. Id., at 1333-1341. It was not enough, he maintained, for the Tribe to show a violation of a general fiduciary relationship stemming from federal involvement in a particular area of Indian affairs. Rather, a Tribe "must show the breach of a specific fiduciary obligation that falls within the contours of the statutes and regulations that create the general fiduciary relationship at issue." Id., at 1341. In his view, "the only government action in this case that implicated a specific fiduciary responsibility" was the Secretary's 1987 approval of the Lease amendments. Id., at 1339. The Secretary had been deficient, Judge Schall concluded, in approving the amendments without first conducting an independent economic analysis of the amended agreement. Id., at 1339-1341. The Court of Appeals denied rehearing. We granted certiorari, 535 U.S. 1111 (2002), and now reverse. II A "It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." Mitchell II, 463 U.S., at 212. The Tribe asserts federal subject-matter jurisdiction under 28 U.S.C. § 1505, known as the Indian Tucker Act. That Act provides: "The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe . . . whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would *503 be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band, or group."[10] "If a claim falls within the terms of the [Indian] Tucker Act, the United States has presumptively consented to suit." Mitchell II, 463 U.S., at 216. Although the Indian Tucker Act confers jurisdiction upon the Court of Federal Claims, it is not itself a source of substantive rights. Ibid.; see Mitchell I, 445 U.S., at 538. To state a litigable claim, a tribal plaintiff must invoke a rights-creating source of substantive law that "can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained." Mitchell II, 463 U.S., at 218. Because "[t]he [Indian] Tucker Act itself provides the necessary consent" to suit, ibid., however, the rights-creating statute or regulation need not contain "a second waiver of sovereign immunity," id., at 218-219. B Mitchell I and Mitchell II are the pathmarking precedents on the question whether a statute or regulation (or combination thereof) "can fairly be interpreted as mandating compensation by the Federal Government." Mitchell II, 463 U.S., at 218. In Mitchell I, we considered whether the Indian General Allotment Act of 1887 (GAA), 24 Stat. 388, as amended, 25 U.S.C. § 331 et seq. (1976 ed.) (§§ 331-333 repealed 2000), authorized an award of money damages against the United *504 States for alleged mismanagement of forests located on lands allotted to tribal members. The GAA authorized the President of the United States to allot agricultural or grazing land to individual tribal members residing on a reservation, § 331, and provided that "the United States does and will hold the land thus allotted ... in trust for the sole use and benefit of the Indian to whom such allotment shall have been made," § 348. We held that the GAA did not create private rights enforceable in a suit for money damages under the Indian Tucker Act. After examining the GAA's language, history, and purpose, we concluded that it "created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources." Mitchell I, 445 U.S., at 542. In particular, we stressed that §§ 1 and 2 of the GAA removed a standard element of a trust relationship by making "the Indian allottee, and not a representative of the United States,... responsible for using the land for agricultural or grazing purposes." Id., at 542-543; see id., at 543 ("Under this scheme,... the allottee, and not the United States, was to manage the land."). We also determined that Congress decided to have "the United States `hold the land ... in trust' not because it wished the Government to control use of the land ..., but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation." Id., at 544. Because "the Act [did] not ... authoriz[e], much less requir[e], the Government to manage timber resources for the benefit of Indian allottees," id., at 545, we held that the GAA established no right to recover money damages for mismanagement of such resources. We left open, however, the possibility that other sources of law might support the plaintiffs' claims for damages. Id., at 546, and n. 7. In Mitchell II, we held that a network of other statutes and regulations did impose judicially enforceable fiduciary *505 duties upon the United States in its management of forested allotted lands. "In contrast to the bare trust created by the [GAA]," we observed, "the statutes and regulations now before us clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians." 463 U.S., at 224. As to managing the forests and selling timber, we noted, Congress instructed the Secretary to be mindful of "the needs and best interests of the Indian owner and his heirs," 25 U.S.C. § 406(a), and specifically to take into account: "(1) the state of growth of the timber and the need for maintaining the productive capacity of the land for the benefit of the owner and his heirs, (2) the highest and best use of the land, including the advisability and practicality of devoting it to other uses for the benefit of the owner and his heirs, and (3) the present and future financial needs of the owner and his heirs." Ibid. Proceeds from timber sales were to be paid to landowners "or disposed of for their benefit." Ibid. Congress' prescriptions, Interior Department regulations, and "daily supervision over the harvesting and management of tribal timber" by the Department's Bureau of Indian Affairs, we emphasized, combined to place under federal control "[v]irtually every stage of the process." Mitchell II, 463 U.S., at 222 (internal quotation marks omitted); see id., at 222-224 (describing comprehensive timber management statutes and regulations promulgated thereunder). Having determined that the statutes and regulations "establish[ed] fiduciary obligations of the Government in the management and operation of Indian lands and resources," we concluded that the relevant legislative and executive prescriptions could "fairly be interpreted as mandating compensation by the Federal Government for damages sustained." Id., at 226. A damages remedy, we explained, would "furthe[r] the purposes of the statutes and regulations, which *506 clearly require that the Secretary manage Indian resources so as to generate proceeds for the Indians." Id., at 226-227. To state a claim cognizable under the Indian Tucker Act, Mitchell I and Mitchell II thus instruct, a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties. See 463 U.S., at 216-217, 219. If that threshold is passed, the court must then determine whether the relevant source of substantive law "can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s]." Id., at 219. Although "the undisputed existence of a general trust relationship between the United States and the Indian people" can "reinforc[e]" the conclusion that the relevant statute or regulation imposes fiduciary duties, id., at 225, that relationship alone is insufficient to support jurisdiction under the Indian Tucker Act. Instead, the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions. Those prescriptions need not, however, expressly provide for money damages; the availability of such damages may be inferred. See id., at 217, n. 16 ("[T]he substantive source of law may grant the claimant a right to recover damages either expressly or by implication." (internal quotation marks and citation omitted)). C We now consider whether the IMLA and its implementing regulations can fairly be interpreted as mandating compensation for the Government's alleged breach of trust in this case. We conclude that they cannot. 1 The Tribe's principal contention is that the IMLA's statutory and regulatory scheme, viewed in its entirety, attaches *507 fiduciary duties to each Government function under that scheme, and that the Secretary acted in contravention of those duties by approving the 12½ percent royalty contained in the amended Lease. See, e. g., Brief for Respondent 20, 30-38. We read the IMLA differently. As we see it, the statute and regulations at issue do not provide the requisite "substantive law" that "mandat[es] compensation by the Federal Government." Mitchell II, 463 U.S., at 218. The IMLA and its implementing regulations impose no obligations resembling the detailed fiduciary responsibilities that Mitchell II found adequate to support a claim for money damages.[11] The IMLA simply requires Secretarial approval before coal mining leases negotiated between Tribes and third parties become effective, 25 U.S.C. § 396a, and authorizes the Secretary generally to promulgate regulations governing mining operations, § 396d. Yet the dissent concludes that the IMLA imposes "one or more specific statutory obligations, as in Mitchell II, at the level of fiduciary duty whose breach is compensable in damages." Post, at 521. The endeavor to align this case with Mitchell II rather than Mitchell I, however valiant, falls short of the mark. Unlike the "elaborate" provisions before the Court in Mitchell II, 463 U.S., at 225, the IMLA and its regulations do not "give the Federal Government full responsibility to manage Indian resources ... for the benefit of the Indians," id., at 224. The Secretary is neither assigned a comprehensive managerial role nor, at the time relevant here, expressly invested with responsibility to secure "the needs and best interests of the *508 Indian owner and his heirs." Ibid. (internal quotation marks omitted) (quoting 25 U.S.C. § 406(a)).[12] Instead, the Secretary's involvement in coal leasing under the IMLA more closely resembles the role provided for the Government by the GAA regarding allotted forest lands. See Mitchell I, 445 U.S., at 540-544. Although the GAA required the Government to hold allotted land "in trust for the sole use and benefit of the Indian to whom such allotment shall have been made," id., at 541 (quoting 25 U.S.C. § 348), that Act did not "authoriz[e], much less requir[e], the Government to manage timber resources for the benefit of Indian allottees," Mitchell I, 445 U.S., at 545. Similarly here, the IMLA and its regulations do not assign to the Secretary managerial control over coal leasing. Nor do they even establish the "limited trust relationship," id., at 542, existing under the GAA; no provision of the IMLA or its regulations contains any trust language with respect to coal leasing. Moreover, as in Mitchell I, imposing fiduciary duties on the Government here would be out of line with one of the statute's principal purposes. The GAA was designed so that "the allottee, and not the United States, . . . [would] manage the land." Id., at 543. Imposing upon the Government a fiduciary duty to oversee the management of allotted lands would not have served that purpose. So too here. The IMLA aims to enhance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties. See supra, at 494. As the Court of Federal Claims recognized, "[t]he ideal of Indian self-determination is directly at odds with Secretarial control over leasing." 46 Fed. Cl., at 230. *509 2 The Tribe nevertheless argues that the actions of the Secretary targeted in this case violated discrete statutory and regulatory provisions whose breach is redressable in an action for damages. In this regard, the Tribe relies extensively on 25 U.S.C. § 399, see, e. g., Brief for Respondent 22-23, 30-31, upon which the Court of Appeals placed considerable weight as well, see 263 F.3d, at 1330-1331; supra, at 501. That provision, however, is not part of the IMLA and does not govern Lease 8580. Enacted almost 20 years before the IMLA, § 399 authorizes the Secretary to lease certain unallotted Indian lands for mining purposes on terms she sets, and does not provide for input from the Tribes concerned. See supra, at 494. In exercising that authority, the Secretary is authorized to "perform any and all acts ... as may be necessary and proper for the protection of the interests of the Indians and for the purpose of carrying the provisions of this section into full force and effect." § 399. But that provision describes the Secretary's leasing authority under § 399; it does not bear on the Secretary's more limited approval role under the IMLA. Similarly unavailing is the Tribe's reliance on the Indian Mineral Development Act of 1982 (IMDA), 25 U.S.C. § 2101 et seq. See Brief for Respondent 23-24, 30. The IMDA governs the Secretary's approval of agreements for the development of certain Indian mineral resources through exploration and like activities. It does not establish standards governing the Secretary's approval of mining leases negotiated by a Tribe and a third party. The Lease in this case, in short, falls outside the IMDA's domain. See Reply Brief 12-13. Citing 25 U.S.C. § 396a, the IMLA's general prescription, see supra, at 493, the Tribe next asserts that the Secretary violated his "duty to review and approve any proposed coal lease with care to promote IMLA's basic purpose and the [Tribe's] best interests." Brief for Respondent 39. To support *510 that assertion, the Tribe points to various Government reports identifying 20 percent as the appropriate royalty, see id., at 5-7, 15, and to the Secretary's decision, made after receiving ex parte communications from Peabody, to withhold departmental action, see id., at 9-10, 15. In the circumstances presented, the Tribe maintains, the Secretary's eventual approval of the 12½ percent royalty violated his duties under § 396a in two ways. First, the Secretary's approval was "improvident," Tr. of Oral Arg. 48, because it allowed the Tribe's coal "to be conveyed for what [the Secretary] knew to be about half of its value," id., at 49. Second, Secretary Hodel's intervention into the Lease adjustment process "skewed the bargaining" by depriving the Tribe of the 20 percent rate, rendering the Secretary's subsequent approval of the 12½ percent rate "unfair." Id., at 50. The Tribe's vigorously pressed arguments headlining § 396a fare no better than its arguments tied to § 399 and the IMDA; the § 396a arguments fail, for they assume substantive prescriptions not found in that provision.[13] As to the "improviden[ce]" of the Secretary's approval, the Tribe can point to no guides or standards circumscribing the Secretary's affirmation of coal mining leases negotiated between a Tribe and a private lessee. Regulations under the IMLA in effect in 1987 established a minimum royalty of ten cents per ton. See 25 CFR § 211.15(c) (1985). But the royalty contained in Lease 8580 well exceeded that regulatory floor. *511 See supra, at 495-496.[14] At the time the Secretary approved the amended Lease, it bears repetition, 12½ percent was the rate the United States itself customarily received from leases to mine coal on federal lands. Similarly, the customary rate for coal leases on Indian lands issued or readjusted after 1976 did not exceed 12½ percent. See supra, at 498-499, n. 6.[15] In sum, neither the IMLA nor any of its regulations establishes anything more than a bare minimum royalty. Hence, there is no textual basis for concluding that the Secretary's approval function includes a duty, enforceable in an action for money damages, to ensure a higher rate of return for the Tribe concerned. Similarly, no pertinent statutory or regulatory provision requires the Secretary, on pain of damages, to conduct an independent "economic analysis" of the reasonableness of the royalty to which a Tribe and third party have agreed. 263 F.3d, at 1340 (concurring opinion below, finding such a duty).[16] *512 The Tribe's second argument under § 396a concentrates on the "skew[ing]" effect of Secretary Hodel's 1985 intervention, i. e., his direction to Deputy Assistant Secretary Fritz to withhold action on Peabody's appeal from the Area Director's decision setting a royalty rate of 20 percent. Tr. of Oral Arg. 50; see supra, at 497-498. The Secretary's actions, both in intervening in the administrative appeal process, and in approving the amended Lease, the Tribe urges, were not based upon an assessment of the merits of the royalty issue; instead, the Tribe maintains, they were attributable entirely to the undue influence Peabody exerted through ex parte communications with the Secretary. See Brief for Respondent 40-42. Underscoring that the Tribe had no knowledge of those communications or of Secretary Hodel's direction to Fritz, see supra, at 498, the Tribe asserts that its bargaining position was seriously compromised when it resumed negotiations with Peabody in 1985. See, e. g., Tr. of *513 Oral Arg. 50-52. The Secretary's ultimate approval of the 12½ percent royalty, the Tribe concludes, was thus an outcome fundamentally unfair to the Tribe. Here again, as the Court of Federal Claims ultimately determined, see supra, at 501, the Tribe's assertions are not grounded in a specific statutory or regulatory provision that can fairly be interpreted as mandating money damages. Nothing in § 396a, the IMLA's basic provision, or in the IMLA's implementing regulations proscribed the ex parte communications in this case, which occurred during an administrative appeal process largely unconstrained by formal requirements. See 25 CFR § 2.20 (1985) (Commissioner may rely on "any information available to [him] ... whether formally part of the record or not."); supra, at 496-497, n. 3. Either party could have effected a transfer of Peabody's appeal to the Board. See 25 CFR § 2.19(b) (1985); supra, at 496-497, n. 3. Exercise of that option would have triggered review of a more formal character, in which ex parte communications would have been prohibited. See 43 CFR § 4.27(b) (1985). But the Tribe did not elect to transfer the matter to the Board, and the regulatory proscription on ex parte contacts applicable in Board proceedings thus did not govern. We note, moreover, that even if Deputy Assistant Secretary Fritz had rendered an opinion affirming the 20 percent royalty approved by the Area Director, it would have been open to the Secretary to set aside or modify his subordinate's decision. See supra, at 498, n. 4. As head of the Department of the Interior, the Secretary had "authority to review any decision of any employee or employees of the Department." 43 CFR § 4.5(a)(2) (1985); cf. Michigan Citizens for Independent Press v. Thornburgh, 868 F.2d 1285 (CADC) (upholding Attorney General's approval, over the contrary conclusions of an administrative law judge and the Justice Department's Antitrust Division, of a joint operating agreement under the Newspaper Preservation Act), aff'd by an equally divided Court, 493 U.S. 38 (1989) (per curiam). Accordingly, *514 rejection of Peabody's appeal by the Deputy Assistant Secretary would not necessarily have yielded a higher royalty for the Tribe. * * * However one might appraise the Secretary's intervention in this case, we have no warrant from any relevant statute or regulation to conclude that his conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act. The judgment of the United States Court of Appeals for the Federal Circuit is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case concerns the ndian Mineral Leasing Act of 1938 (MLA), 25 US C 396a et seq, and the role it assigns to the Secretary of the nterior (Secretary) with respect to coal leases executed by an ndian Tribe and a private lessee The controversy centers on 1987 amendments to a 1964 coal lease entered into by the predecessor of Peabody Coal Company (Peabody) and the Navajo Nation (Tribe), a federally recognized ndian Tribe The Tribe seeks to recover money damages from the United States for an alleged breach of trust in connection with the Secretary's approval of coal lease amendments negotiated by the Tribe and Peabody This Court's decisions in United and United control this case Concluding that the controversy here falls within Mitchell 's domain, we hold that the Tribe's claim for compensation from the Federal Government fails, for it does not derive from any liability-imposing provision of the MLA or its implementing regulations A The MLA, which governs aspects of mineral leasing on ndian tribal lands, states that "unallotted lands within any ndian reservation," or otherwise under federal jurisdiction, "may, with the approval of the Secretary be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such ndians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities" 396a n addition "to provid[ing] ndian tribes with a profitable source of revenue," Cotton Petroleum Corp v New Mexico, 490 US *494 163, 179 the MLA aimed to foster tribal self-determination by "giv[ing] ndians a greater say in the use and disposition of the resources found on ndian lands," BHP Minerals nt'l nc, 139 B L A 269, 311 (1997) Prior to enactment of the MLA, decisions whether to grant mineral leases on ndian land generally rested with the Government See, e g, Act of June 30, 1919, ch 4, 26, as amended, 25 US C 399; see also infra, 9 (describing 399) ndian consent was not required, and leases were sometimes granted over tribal objections See H R Rep No 1872, 75th Cong, 3d Sess, 2 (1938); S Rep No 985, 75th Cong, 1st Sess, 2 (1937); The MLA, designed to advance tribal independence, empowers Tribes to negotiate mining leases themselves, and, as to coal leasing, assigns primarily an approval role to the Secretary Although the MLA covers mineral leasing generally, in a number of discrete provisions it deals particularly with oil and gas leases See 25 USC 396b (requirements for public auctions of oil and gas leases); 396d (oil and gas leases are "subject to the terms of any reasonable cooperative unit or other plan approved or prescribed by [the] Secretary"); 396g ("[T]o avoid waste or to promote the conservation of natural resources or the welfare of the ndians," the Secretary may approve leases of ndian lands "for the subsurface storage of oil and gas") The MLA contains no similarly specific prescriptions for coal leases; it simply remits coal leases, in common with all mineral leases, to the governance of rules and regulations promulgated by the Secretary 396d During all times relevant here, the MLA regulations provided that "ndian tribes may, with the approval of the Secretary or his authorized representative, lease their land for mining purposes" 25 CFR 2112 () n line with the MLA itself, the regulations treated oil and gas leases in more detail than coal leases The regulations regarding *495 royalties, for example, specified procedures applicable to oil and gas leases, including criteria for the Secretary to employ in setting royalty rates 21113, 21116, 21117 As to coal royalties, in contrast, the regulations required only that the rate be "not less than 10 cents per ton" 21115(c) No other limitation was placed on the Tribe's negotiating capacity or the Secretary's approval authority[1] B The Tribe involved in this case occupies the largest ndian reservation in the United States Over the past century, large deposits of coal have been discovered on the Tribe's reservation lands, which are held for it in trust by the United States Each year, the Tribe receives millions of dollars in royalty payments pursuant to mineral leases with private companies Peabody mines coal on the Tribe's lands pursuant to leases covered by the MLA This case principally concerns Lease 8580 (Lease or Lease 8580), which took effect upon approval by the Secretary in 1964 App 188-220 The Lease established a maximum royalty rate of 375 cents per ton of coal, but made that figure "subject to reasonable adjustment by the Secretary of the nterior or his authorized representative" on the 20-year anniversary of the Lease and every ten years thereafter, As the 20-year anniversary of Lease 8580 approached, its royalty rate of 375 cents per ton yielded for the Tribe only "about 2% of gross proceeds" This return was higher than the ten cents per ton minimum established by the then-applicable MLA regulations *496 See 25 CFR 21115(c) () t was substantially lower, however, than the 12½ percent of gross proceeds rate Congress established in 1977 as the minimum permissible royalty for coal mined on federal lands under the Mineral Leasing Act See Pub L 94-377, 6, as amended, 30 US C 207(a) For some years starting in the 1970's, to gain a more favorable return, the Tribe endeavored to renegotiate existing mineral leases with private lessees, including Peabody See App 138-139, 143-144 n March 1984, the Chairman of the Navajo Tribal Council wrote to the Secretary asking him to exercise his contractually conferred authority to adjust the royalty rate under Lease 8580 On June 18, 1984, the Director of the Bureau of ndian for the Navajo Area, acting pursuant to authority delegated by the Secretary, sent Peabody an opinion letter raising the rate to 20 percent of gross proceeds Contesting the Area Director's rate determination, Peabody filed an administrative appeal in July 1984, pursuant to 25 CFR 23(a) () [2] The appeal was referred to the Deputy Assistant Secretary for ndian John Fritz, then acting as both Commissioner of ndian and Assistant Secretary of ndian 263 F3d, at 1328 n March Fritz permitted Peabody to supplement its brief and requested additional cost, revenue, and investment data He thereafter appeared ready to reject Peabody's appeal bid; App 89-97 (undated draft letter) By June both Peabody and the Tribe anticipated that an announcement favorable to the Tribe was imminent [3] *497 On July 5, a Peabody Vice President wrote to nterior Secretary Donald Hodel, asking him either to postpone decision on Peabody's appeal so the parties could seek a negotiated settlement, or to rule in Peabody's favor A copy of Peabody's letter was sent to the Tribe, which then submitted its own letter urging the Secretary to reject Peabody's request and to secure the Department's prompt release of a decision in the Tribe's favor, Peabody representatives met privately with Secretary Hodel in July ; no representative of the Tribe was present at, or received notice of, that meeting, On July 17, Secretary Hodel sent a memorandum to Deputy Assistant Secretary Fritz App 117-118 The memorandum "suggest[ed]" that Fritz "inform the involved parties that a decision on th[e] appeal is not imminent and urge them to continue with efforts to resolve this matter in a mutually agreeable fashion" "Any royalty adjustment which is imposed on those parties without their concurrence," the memorandum stated, "will almost certainly be the subject of protracted and costly appeals," and "could well impair the future of the contractual relationship" *498 between the parties bid[4] Secretary Hodel added, however, that the memorandum was "not intended as a determination of the merits of the arguments of the parties with respect to the issues which are subject to the appeal" The Tribe was not told of the Secretary's memorandum to Fritz, but learned that "`someone from Washington' had urged a return to the bargaining table" 46 Fed Cl, at 223; see App 342-344 Facing "severe economic pressure," 263 F3d, at 1328; App 355-356, the Tribe resumed negotiations with Peabody in August 46 Fed Cl, at 223 On September 23, the parties reached a tentative agreement on a package of amendments to Lease 8580 bid[5] They agreed to raise the royalty rate to 12½ percent of monthly gross proceeds, and to make the new rate retroactive to February 1, 1984 App 287 The 12½ percent rate was at the time customary for leases to mine coal on federal lands and on ndian lands[6] The amendments acknowledged *499 the legitimacy of tribal taxation of coal production, but stipulated that the tax rate would be capped at eight percent [7] n addition, Peabody agreed to pay the *500 Tribe $15 million when the amendments became effective, and $75 million more when Peabody began mining additional coal, as authorized by the Lease amendments The agreement "also addressed ancillary matters such as provisions for future royalty adjustments, arbitration procedures, rights of way, the establishment of a tribal scholarship fund, and the payment by Peabody of back royalties, bonuses, and water payments" 46 Fed Cl, "n consideration of the benefits associated with these lease amendments," the parties agreed to move jointly to vacate the Area Director's June 1984 decision, which had raised the royalty to 20 percent App 286 n August 1987, the Navajo Tribal Council approved the amendments 46 Fed Cl, The parties signed a final agreement in November 1987, App 309, and Secretary Hodel approved it on December 14, 1987, Shortly thereafter, pursuant to the parties' stipulation, the Area Director's decision was vacated 46 Fed Cl, n 1993, the Tribe brought suit against the United States in the Court of Federal Claims, alleging, inter alia, that the Secretary's approval of the amendments to the Lease constituted a breach of trust The Tribe sought $600 million in damages[8] *501 The Court of Federal Claims granted summary judgment for the United States n no uncertain terms, that court found that the Government owed general fiduciary duties to the Tribe, which, in its view, the Secretary had flagrantly dishonored by acting in the best interests of Peabody rather than the Tribe Nevertheless, the court concluded that the Tribe had entirely failed to link that breach of duty to any statutory or regulatory obligation which could "be fairly interpreted as mandating compensation for the government's fiduciary wrongs" Accordingly, the court held that the United States was entitled to judgment as a matter of law[9] The Court of Appeals for the Federal Circuit reversed The Government's liability to the Tribe, it said, turned on whether "the United States controls the ndian resources" Relying on 25 USC 399 and regulations promulgated thereunder, the Court of Appeals determined that the measure of control the Secretary exercised over the leasing of ndian lands for mineral development sufficed to warrant a money judgment against the United States for breaches of fiduciary duties connected to coal leasing 263 F3d, at 1330-1332 But see infra, 9 The appeals court agreed with the Federal Claims Court that the Secretary's actions regarding Peabody's administrative appeal violated the Government's fiduciary obligations to the Tribe, in that those actions "suppress[ed] and conceal[ed]" the decision of the Deputy Assistant Secretary, and "thereby favor[ed] Peabody interests to the detriment of Navajo interests" 263 F3d, at 1332 Based on these *502 determinations, the Court of Appeals remanded for further proceedings, including a determination of damages Judge Schall concurred in part and dissented in part -1341 t was not enough, he maintained, for the Tribe to show a violation of a general fiduciary relationship stemming from federal involvement in a particular area of ndian affairs Rather, a Tribe "must show the breach of a specific fiduciary obligation that falls within the contours of the statutes and regulations that create the general fiduciary relationship at issue" n his view, "the only government action in this case that implicated a specific fiduciary responsibility" was the Secretary's 1987 approval of the Lease amendments The Secretary had been deficient, Judge Schall concluded, in approving the amendments without first conducting an independent economic analysis of the amended agreement -1341 The Court of Appeals denied rehearing We granted certiorari, 535 US 1111 and now reverse A "t is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction" Mitchell 463 US, at 212 The Tribe asserts federal subject-matter jurisdiction under 28 USC 1505, known as the ndian Tucker Act That Act provides: "The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would *503 be cognizable in the Court of Federal Claims if the claimant were not an ndian tribe, band, or group"[10] "f a claim falls within the terms of the [ndian] Tucker Act, the United States has presumptively consented to suit" Mitchell 463 US, at 216 Although the ndian Tucker Act confers jurisdiction upon the Court of Federal Claims, it is not itself a source of substantive rights bid; see Mitchell 445 US, at 538 To state a litigable claim, a tribal plaintiff must invoke a rights-creating source of substantive law that "can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained" Mitchell 463 US, at 218 Because "[t]he [ndian] Tucker Act itself provides the necessary consent" to suit, ib however, the rights-creating statute or regulation need not contain "a second waiver of sovereign immunity," B Mitchell and Mitchell are the pathmarking precedents on the question whether a statute or regulation (or combination thereof) "can fairly be interpreted as mandating compensation by the Federal Government" Mitchell 463 US, at 218 n Mitchell we considered whether the ndian General Allotment Act of 1887 (GAA), 24 Stat 388, as amended, 25 USC 331 et seq (1976 ed) authorized an award of money damages against the United *504 States for alleged mismanagement of forests located on lands allotted to tribal members The GAA authorized the President of the United States to allot agricultural or grazing land to individual tribal members residing on a reservation, 331, and provided that "the United States does and will hold the land thus allotted in trust for the sole use and benefit of the ndian to whom such allotment shall have been made," 348 We held that the GAA did not create private rights enforceable in a suit for money damages under the ndian Tucker Act After examining the GAA's language, history, and purpose, we concluded that it "created only a limited trust relationship between the United States and the allottee that does not impose any duty upon the Government to manage timber resources" Mitchell 445 US, n particular, we stressed that 1 and 2 of the GAA removed a standard element of a trust relationship by making "the ndian allottee, and not a representative of the United States, responsible for using the land for agricultural or grazing purposes" ; see ("Under this scheme, the allottee, and not the United States, was to manage the land") We also determined that Congress decided to have "the United States `hold the land in trust' not because it wished the Government to control use of the land but simply because it wished to prevent alienation of the land and to ensure that allottees would be immune from state taxation" Because "the Act [did] not authoriz[e], much less requir[e], the Government to manage timber resources for the benefit of ndian allottees," we held that the GAA established no right to recover money damages for mismanagement of such resources We left open, however, the possibility that other sources of law might support the plaintiffs' claims for damages and n 7 n Mitchell we held that a network of other statutes and regulations did impose judicially enforceable fiduciary *505 duties upon the United States in its management of forested allotted lands "n contrast to the bare trust created by the [GAA]," we observed, "the statutes and regulations now before us clearly give the Federal Government full responsibility to manage ndian resources and land for the benefit of the ndians" 463 US, As to managing the forests and selling timber, we noted, Congress instructed the Secretary to be mindful of "the needs and best interests of the ndian owner and his heirs," 25 USC 406(a), and specifically to take into account: "(1) the state of growth of the timber and the need for maintaining the productive capacity of the land for the benefit of the owner and his heirs, (2) the highest and best use of the land, including the advisability and practicality of devoting it to other uses for the benefit of the owner and his heirs, and (3) the present and future financial needs of the owner and his heirs" bid Proceeds from timber sales were to be paid to landowners "or disposed of for their benefit" bid Congress' prescriptions, nterior Department regulations, and "daily supervision over the harvesting and management of tribal timber" by the Department's Bureau of ndian we emphasized, combined to place under federal control "[v]irtually every stage of the process" Mitchell 463 US, at 222 ; see Having determined that the statutes and regulations "establish[ed] fiduciary obligations of the Government in the management and operation of ndian lands and resources," we concluded that the relevant legislative and executive prescriptions could "fairly be interpreted as mandating compensation by the Federal Government for damages sustained" A damages remedy, we explained, would "furthe[r] the purposes of the statutes and regulations, which *506 clearly require that the Secretary manage ndian resources so as to generate proceeds for the ndians" -227 To state a claim cognizable under the ndian Tucker Act, Mitchell and Mitchell thus instruct, a Tribe must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties See 463 US, at 216-217, 219 f that threshold is passed, the court must then determine whether the relevant source of substantive law "can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s]" Although "the undisputed existence of a general trust relationship between the United States and the ndian people" can "reinforc[e]" the conclusion that the relevant statute or regulation imposes fiduciary duties, that relationship alone is insufficient to support jurisdiction under the ndian Tucker Act nstead, the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions Those prescriptions need not, however, expressly provide for money damages; the availability of such damages may be inferred See at 217, n 16 ("[T]he substantive source of law may grant the claimant a right to recover damages either expressly or by implication" (internal quotation marks and citation omitted)) C We now consider whether the MLA and its implementing regulations can fairly be interpreted as mandating compensation for the Government's alleged breach of trust in this case We conclude that they cannot 1 The Tribe's principal contention is that the MLA's statutory and regulatory scheme, viewed in its entirety, attaches *507 fiduciary duties to each Government function under that scheme, and that the Secretary acted in contravention of those duties by approving the 12½ percent royalty contained in the amended Lease See, e g, Brief for Respondent 20, 30-38 We read the MLA differently As we see it, the statute and regulations at issue do not provide the requisite "substantive law" that "mandat[es] compensation by the Federal Government" Mitchell 463 US, at 218 The MLA and its implementing regulations impose no obligations resembling the detailed fiduciary responsibilities that Mitchell found adequate to support a claim for money damages[11] The MLA simply requires Secretarial approval before coal mining leases negotiated between Tribes and third parties become effective, 25 USC 396a, and authorizes the Secretary generally to promulgate regulations governing mining operations, 396d Yet the dissent concludes that the MLA imposes "one or more specific statutory obligations, as in Mitchell at the level of fiduciary duty whose breach is compensable in damages" Post, at 521 The endeavor to align this case with Mitchell rather than Mitchell however valiant, falls short of the mark Unlike the "elaborate" provisions before the Court in Mitchell 463 US, the MLA and its regulations do not "give the Federal Government full responsibility to manage ndian resources for the benefit of the ndians," The Secretary is neither assigned a comprehensive managerial role nor, at the time relevant here, expressly invested with responsibility to secure "the needs and best interests of the *508 ndian owner and his heirs" bid (quoting 25 USC 406(a))[12] nstead, the Secretary's involvement in coal leasing under the MLA more closely resembles the role provided for the Government by the GAA regarding allotted forest lands See Mitchell 445 US, at 540-544 Although the GAA required the Government to hold allotted land "in trust for the sole use and benefit of the ndian to whom such allotment shall have been made," (quoting 25 USC 348), that Act did not "authoriz[e], much less requir[e], the Government to manage timber resources for the benefit of ndian allottees," Mitchell 445 US, Similarly here, the MLA and its regulations do not assign to the Secretary managerial control over coal leasing Nor do they even establish the "limited trust relationship," existing under the GAA; no provision of the MLA or its regulations contains any trust language with respect to coal leasing Moreover, as in Mitchell imposing fiduciary duties on the Government here would be out of line with one of the statute's principal purposes The GAA was designed so that "the allottee, and not the United States, [would] manage the land" mposing upon the Government a fiduciary duty to oversee the management of allotted lands would not have served that purpose So too here The MLA aims to enhance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties See As the Court of Federal Claims recognized, "[t]he ideal of ndian self-determination is directly at odds with Secretarial control over leasing" 46 Fed Cl, at *509 2 The Tribe nevertheless argues that the actions of the Secretary targeted in this case violated discrete statutory and regulatory provisions whose breach is redressable in an action for damages n this regard, the Tribe relies extensively on 25 USC 399, see, e g, Brief for Respondent 22-23, 30-31, upon which the Court of Appeals placed considerable weight as well, see 263 F3d, at 1330-1331; That provision, however, is not part of the MLA and does not govern Lease 8580 Enacted almost 20 years before the MLA, 399 authorizes the Secretary to lease certain unallotted ndian lands for mining purposes on terms she sets, and does not provide for input from the Tribes concerned See n exercising that authority, the Secretary is authorized to "perform any and all acts as may be necessary and proper for the protection of the interests of the ndians and for the purpose of carrying the provisions of this section into full force and effect" 399 But that provision describes the Secretary's leasing authority under 399; it does not bear on the Secretary's more limited approval role under the MLA Similarly unavailing is the Tribe's reliance on the ndian Mineral Development Act of 1982 (MDA), 25 USC 2101 et seq See Brief for Respondent 23-24, 30 The MDA governs the Secretary's approval of agreements for the development of certain ndian mineral resources through exploration and like activities t does not establish standards governing the Secretary's approval of mining leases negotiated by a Tribe and a third party The Lease in this case, in short, falls outside the MDA's domain See Reply Brief 12-13 Citing 25 USC 396a, the MLA's general prescription, see the Tribe next asserts that the Secretary violated his "duty to review and approve any proposed coal lease with care to promote MLA's basic purpose and the [Tribe's] best interests" Brief for Respondent 39 To support *510 that assertion, the Tribe points to various Government reports identifying 20 percent as the appropriate royalty, see and to the Secretary's decision, made after receiving ex parte communications from Peabody, to withhold departmental action, see n the circumstances presented, the Tribe maintains, the Secretary's eventual approval of the 12½ percent royalty violated his duties under 396a in two ways First, the Secretary's approval was "improvident," Tr of Oral Arg 48, because it allowed the Tribe's coal "to be conveyed for what [the Secretary] knew to be about half of its value," Second, Secretary Hodel's intervention into the Lease adjustment process "skewed the bargaining" by depriving the Tribe of the 20 percent rate, rendering the Secretary's subsequent approval of the 12½ percent rate "unfair" The Tribe's vigorously pressed arguments headlining 396a fare no better than its arguments tied to 399 and the MDA; the 396a arguments fail, for they assume substantive prescriptions not found in that provision[13] As to the "improviden[ce]" of the Secretary's approval, the Tribe can point to no guides or standards circumscribing the Secretary's affirmation of coal mining leases negotiated between a Tribe and a private lessee Regulations under the MLA in effect in 1987 established a minimum royalty of ten cents per ton See 25 CFR 21115(c) () But the royalty contained in Lease 8580 well exceeded that regulatory floor *511 See 5-496[14] At the time the Secretary approved the amended Lease, it bears repetition, 12½ percent was the rate the United States itself customarily received from leases to mine coal on federal lands Similarly, the customary rate for coal leases on ndian lands issued or readjusted after 1976 did not exceed 12½ percent See 8-499, n 6[15] n sum, neither the MLA nor any of its regulations establishes anything more than a bare minimum royalty Hence, there is no textual basis for concluding that the Secretary's approval function includes a duty, enforceable in an action for money damages, to ensure a higher rate of return for the Tribe concerned Similarly, no pertinent statutory or regulatory provision requires the Secretary, on pain of damages, to conduct an independent "economic analysis" of the reasonableness of the royalty to which a Tribe and third party have agreed 263 F3d, at 1340 [16] *512 The Tribe's second argument under 396a concentrates on the "skew[ing]" effect of Secretary Hodel's intervention, i e, his direction to Deputy Assistant Secretary Fritz to withhold action on Peabody's appeal from the Area Director's decision setting a royalty rate of 20 percent Tr of Oral Arg 50; see 7-498 The Secretary's actions, both in intervening in the administrative appeal process, and in approving the amended Lease, the Tribe urges, were not based upon an assessment of the merits of the royalty issue; instead, the Tribe maintains, they were attributable entirely to the undue influence Peabody exerted through ex parte communications with the Secretary See Brief for Respondent 40-42 Underscoring that the Tribe had no knowledge of those communications or of Secretary Hodel's direction to Fritz, see 8, the Tribe asserts that its bargaining position was seriously compromised when it resumed negotiations with Peabody in See, e g, Tr of *513 Oral Arg 50-52 The Secretary's ultimate approval of the 12½ percent royalty, the Tribe concludes, was thus an outcome fundamentally unfair to the Tribe Here again, as the Court of Federal Claims ultimately determined, see the Tribe's assertions are not grounded in a specific statutory or regulatory provision that can fairly be interpreted as mandating money damages Nothing in 396a, the MLA's basic provision, or in the MLA's implementing regulations proscribed the ex parte communications in this case, which occurred during an administrative appeal process largely unconstrained by formal requirements See 25 CFR 220 () (Commissioner may rely on "any information available to [him] whether formally part of the record or not"); 6-497, n 3 Either party could have effected a transfer of Peabody's appeal to the Board See 25 CFR 219(b) (); 6-497, n 3 Exercise of that option would have triggered review of a more formal character, in which ex parte communications would have been prohibited See 43 CFR 427(b) () But the Tribe did not elect to transfer the matter to the Board, and the regulatory proscription on ex parte contacts applicable in Board proceedings thus did not govern We note, moreover, that even if Deputy Assistant Secretary Fritz had rendered an opinion affirming the 20 percent royalty approved by the Area Director, it would have been open to the Secretary to set aside or modify his subordinate's decision See 8, n 4 As head of the Department of the nterior, the Secretary had "authority to review any decision of any employee or employees of the Department" 43 CFR 45(a)(2) (); cf Michigan Citizens for ndependent Press v Thornburgh, 868 F2d 1285 (CADC) (upholding Attorney General's approval, over the contrary conclusions of an administrative law judge and the Justice Department's Antitrust Division, of a joint operating agreement under the Newspaper Preservation Act), aff'd by an equally divided Court, 493 US 38 Accordingly, *514 rejection of Peabody's appeal by the Deputy Assistant Secretary would not necessarily have yielded a higher royalty for the Tribe * * * However one might appraise the Secretary's intervention in this case, we have no warrant from any relevant statute or regulation to conclude that his conduct implicated a duty enforceable in an action for damages under the ndian Tucker Act The judgment of the United States Court of Appeals for the Federal Circuit is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion t is so ordered

Justice Souter

dissenting

United States v. Navajo Nation

2003-03-04

https://www.courtlistener.com/opinion/122264/united-states-v-navajo-nation/

https://www.courtlistener.com/api/rest/v3/clusters/122264/

2002-025

The issue in this case is whether the Indian Mineral Leasing Act (IMLA) and its regulations imply a specific duty on the Secretary of the Interior's part, with a cause of action for damages in case of breach. The Court and I recognize that if IMLA indicates that a fiduciary duty was intended, it need not provide a damages remedy explicitly; once a statutory or regulatory provision is found to create a specific fiduciary obligation, the right to damages can be inferred from general trust principles, and amenability to suit under the Indian Tucker Act. See United States v. White Mountain Apache Tribe, ante, at 472-473; United States v. Mitchell, 463 U.S. 206, 226 (1983) (Mitchell II). I part from the majority because I take the Secretary's obligation to approve mineral leases under 25 U.S.C. § 396a as raising a substantial fiduciary obligation to the Navajo Nation (Tribe), which has pleaded and shown enough to survive the Government's motion for summary judgment. I would affirm the judgment of the Federal Circuit. *515 IMLA requires the Secretary's approval for the effectiveness of any lease negotiated by the Tribe with a third party. § 396a; see also 25 CFR § 211.2 (1985). The Court accepts the Government's position, see Brief for United States 38, that the IMLA approval responsibility places no substantive obligation on the Secretary, save for a minimal duty to withhold assent from leases calling for less than the minimum royalty rate set by IMLA regulations, whatever that may be. Ante, at 511. Since that rate is merely a general standard, which may be a bargain rate when applied to extractable material of high quality, the obligation to demand it may not amount to much. The legislative history and purposes of IMLA, however, illuminated by the Secretary's historical role in reviewing conveyances of Indian lands, point to a fiduciary responsibility to make a more ambitious assessment of the best interest of the Tribe before signing off. The protective purpose of the Secretary's approval power has appeared in our discussions of other statutes governing Indian lands over the years. In Tiger v. Western Investment Co., 221 U.S. 286 (1911), for example, we upheld the constitutionality of the Act of Apr. 26, 1906, ch. 1876, § 22, 34 Stat. 145, which made alienation of certain allotted lands by citizen Indians "subject to the approval of the Secretary of the Interior." Although allotment and conferral of citizenship had given tribal members greater responsibility for their own interest, see, e. g., Choteau v. Burnet, 283 U.S. 691, 694 (1931), we nevertheless understood that the requirement of prior approval was supposed to satisfy the National Government's trust responsibility to the Indians, Tiger, supra, at 310-311; accord, Sunderland v. United States, 266 U.S. 226, 233 (1924) (restraints on alienation of Indian property are enacted "in fulfillment of [Congress's] duty to protect the Indians"). Shortly after Tiger, in Anicker v. Gunsburg, 246 U.S. 110 (1918), we held that the Secretary's authority to approve leases of allotted lands under the Act of May 27, *516 1908, ch. 199, § 2, 35 Stat. 312, was "unquestionably ... given to him for the protection of Indians against their own improvidence and the designs of those who would obtain their property for inadequate compensation." 246 U.S., at 119. The Secretary's approval power was understood to be a significant component of the Government's general trust responsibility. See Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L. Rev. 979, 1002-1003 (1981); Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L. Rev. 1061, 1061-1068 (1974). Congress's decision in IMLA to give the Secretary an approval authority is well understood in terms of this background, for in the enactment of IMLA, Congress devised a scheme of divided responsibility reminiscent of the old allotment legislation. While it changed the prior law by transferring negotiating authority from the Government to the tribes, it hedged that augmentation of tribal authority in leaving the Secretary with certain powers of oversight, including the authority to approve or reject leases once the tribes negotiated them. 25 U.S.C. §§ 396a-g. The Secretary's signature was the final step in a scheme of "uniform leasing procedures designed to protect the Indians," Montana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985), and imposed out of a concern that existing laws were not "adequate to give the Indians the greatest return from their property," S. Rep. No. 985, 75th Cong., 1st Sess., 2 (1937); H.R. Rep. No. 1872, 75th Cong., 3d Sess., 2 (1938). The "basic purpose" of the Secretary's powers under IMLA is thus to "maximize tribal revenues from reservation lands." Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195, 200 (1985); see Blackfeet Tribe, supra, at 767, n. 5. Consistent with this aim, the Secretary's own IMLA regulations (now in effect) provide that administrative actions, including lease approvals, are to be taken "[i]n the best interest of the Indian mineral owner." *517 25 CFR § 211.3 (2002); see also § 211.1 (stating that the overarching purpose of IMLA regulations is to ensure that Indians' mineral resources "will be developed in a manner that maximizes their best economic interests").[1] Thus, viewed in light of IMLA's legislative history and the general trust relationship between the United States and the Indians, see Mitchell II, 463 U.S., at 224-225, § 396a supports the existence of a fiduciary responsibility to review mineral leases for substance to safeguard the Indians' interest.[2] I do not mean to suggest that devising a specific standard of responsibility is any simple matter, for we cannot ignore the tension between IMLA's two objectives. If we thought solely in terms of the aim to ensure that negotiated leases "maximize tribal revenues," Kerr-McGee, supra, at 200, we would ignore the object of IMLA to provide greater tribal responsibility, against which the Secretary's oversight is acting *518 as a hedge. See Royster, Mineral Development in Indian Country: The Evolution of Tribal Control Over Mineral Resources, 29 Tulsa L. Rev. 541, 558-580 (1994) (noting the twin aims of IMLA). The more stringent the substantive obligation of the Secretary, the less the scope of tribal responsibility. The Court, however, errs in the opposite direction, giving overriding weight to the interest of tribal autonomy to the point of concluding that the Secretary's approval obligation cannot be an onerous one, ante, at 508, thus losing sight of the mixture of congressional objectives. The standard of responsibility simply cannot give the whole hog to the one congressional policy or the other. While this is not the case to essay any ultimate formulation of a balanced standard, even a reticent formulation of the fiduciary obligation would require the Secretary to withhold approval if he had good reason to doubt that the negotiated rate was within the range of reasonable market rates for the coal in question, or if he had reason to know that the Tribe had been placed under an unfair disadvantage at the negotiating table by his very own acts. See Restatement (Second) of Trusts §§ 170, 173, 174, 176 (1957). And those modest standards are enough to keep the present suit in court, for the Tribe has pleaded a breach of trust in each respect and has submitted evidence to get past summary judgment on either alternative. The record discloses serious indications that the 12½ percent royalty rate in the lease amendments was substantially less than fair market value for the Tribe's high quality coal. In the course of deciding that 20 percent would be a reasonable adjustment under the terms of the lease, the Area Director of the Board of Indian Affairs (BIA) considered several independent economic studies, each one of them recommending rates around 20 percent, and one specifically rejecting 12½ percent as "inadequate." App. 6-7 (internal *519 quotation marks omitted).[3] These conclusions were confirmed by the expert from the BIA's Energy and Mineral Division, in a supplemental report submitted after Peabody appealed the Area Director's decision. That report not only endorsed the 20 percent rate, but expressly found that the royalty rate "should be much higher than the 12.5% that the Federal Government receives for surface-mined coal" because the Navajo coal is "extremely valuable." Id., at 22. No federal study ever recommended a royalty rate under 20 percent, and yet the Secretary approved a rate little more than half that. Id., at 134. When this case was before the Federal Circuit, Judge Schall took the sensible position that the Secretary was obligated to obtain an independent market study to assess the rate in these circumstances, see 263 F.3d 1325, 1340 (2001) (opinion concurring in part and dissenting in part), and the record as it stands shows the Secretary to be clearly open to the claim of fiduciary breach for approving the rate on the information he is said to have had. Of course I recognize that the Secretary's obligation is to approve leases, not royalty rates in isolation, but an allegation that he approved an otherwise unjustified rate apparently well below market for the particular resource deposit certainly raises a claim of breach. *520 What is more, the Tribe has made a powerful showing that the Secretary knew perfectly well how his own intervention on behalf of Peabody had derailed the lease adjustment proceeding that would in all probability have yielded the 20 percent rate. After his ex parte meeting with Peabody's representatives, the Secretary put his name on the memorandum, drafted by Peabody, directing Deputy Assistant Secretary Fritz to withhold his decision affirming the 20 percent rate; directing him to mislead the Tribe by telling it that no decision on the merits of the adjustment was imminent, when in fact the affirmance had been prepared for Fritz's signature; and directing him to encourage the Tribe to shift its attention from the Area Director's appealed award of 20 percent and return to the negotiating table, where 20 percent was never even a possibility. App. 117-118. The purpose and predictable effect of these actions was to induce the Tribe to take a deep discount in the royalty rate in the face of what the Tribe feared would otherwise be prolonged revenue loss and uncertainty. The point of this evidence is not that the Secretary violated some rule of procedure for administrative appeals, ante, at 512-513, or some statutory duty regarding royalty adjustments under the terms of the earlier lease. What these facts support is the Tribe's claim that the Secretary defaulted on his fiduciary responsibility to withhold approval of an inadequate lease accepted by the Tribe while under a disadvantage the Secretary himself had intentionally imposed.[4] *521 All of this is not to say that the Tribe would end up with a recovery at the end of the day. Disputed facts have not been tried; the negotiations affected not only the 1964 lease that was subject to adjustment on demand, but also other leases apparently not subject to the same option for the Tribe's benefit; and the renegotiated terms affected lease provisions other than royalties (including tax terms). For all we can say now, the net of all these changes may have been an overall bargain in the Tribe's interest, despite the smaller royalty figure in the lease as approved. But the only issue here is whether the Tribe's claims address one or more specific statutory obligations, as in Mitchell II, at the level of fiduciary duty whose breach is compensable in damages. The Tribe has pleaded such duty, the record shows that the Tribe has a case to try, and I respectfully dissent.

The issue in this case is whether the Indian Mineral Leasing Act (IMLA) and its regulations imply a specific duty on the Secretary of the Interior's part, with a cause of action for damages in case of breach. The Court and I recognize that if IMLA indicates that a fiduciary duty was intended, it need not provide a damages remedy explicitly; once a statutory or regulatory provision is found to create a specific fiduciary obligation, the right to damages can be inferred from general trust principles, and amenability to suit under the Indian Tucker Act. See United States v. White Mountain Apache ante, at 472-473; United I part from the majority because I take the Secretary's obligation to approve mineral leases under 25 U.S.C. 396a as raising a substantial fiduciary obligation to the Navajo Nation (), which has pleaded and shown enough to survive the Government's motion for summary judgment. I would affirm the judgment of the Federal Circuit. *515 IMLA requires the Secretary's approval for the effectiveness of any lease negotiated by the with a third party. 396a; see also 25 CFR 211.2 The Court accepts the Government's position, see Brief for United States 38, that the IMLA approval responsibility places no substantive obligation on the Secretary, save for a minimal duty to withhold assent from leases calling for less than the minimum royalty rate set by IMLA regulations, whatever that may be. Ante, at 511. Since that rate is merely a general standard, which may be a bargain rate when applied to extractable material of high quality, the obligation to demand it may not amount to much. The legislative history and purposes of IMLA, however, illuminated by the Secretary's historical role in reviewing conveyances of Indian lands, point to a fiduciary responsibility to make a more ambitious assessment of the best interest of the before signing off. The protective purpose of the Secretary's approval power has appeared in our discussions of other statutes governing Indian lands over the years. In for example, we upheld the constitutionality of the Act of Apr. 26, 1906, ch. 1876, 22, which made alienation of certain allotted lands by citizen Indians "subject to the approval of the Secretary of the Interior." Although allotment and conferral of citizenship had given tribal members greater responsibility for their own interest, see, e. g., we nevertheless understood that the requirement of prior approval was supposed to satisfy the National Government's trust responsibility to the Indians, ; accord, 266 U.S. Shortly after in we held that the Secretary's authority to approve leases of allotted lands under the Act of May 27, *516 1908, ch. 199, 2, was "unquestionably given to him for the protection of Indians against their own improvidence and the designs of those who would obtain their property for inadequate compensation." The Secretary's approval power was understood to be a significant component of the Government's general trust responsibility. See Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, ; Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, Congress's decision in IMLA to give the Secretary an approval authority is well understood in terms of this background, for in the enactment of IMLA, Congress devised a scheme of divided responsibility reminiscent of the old allotment legislation. While it changed the prior law by transferring negotiating authority from the Government to the tribes, it hedged that augmentation of tribal authority in leaving the Secretary with certain powers of oversight, including the authority to approve or reject leases once the tribes negotiated them. 25 U.S.C. 396a-g. The Secretary's signature was the final step in a scheme of "uniform leasing procedures designed to protect the Indians," and imposed out of a concern that existing laws were not "adequate to give the Indians the greatest return from their property," S. Rep. No. 985, 75th Cong., 1st Sess., 2 (1937); H.R. Rep. No. 1872, 75th Cong., 3d Sess., 2 (1938). The "basic purpose" of the Secretary's powers under IMLA is thus to "maximize tribal revenues from reservation lands." ; see Blackfeet Consistent with this aim, the Secretary's own IMLA regulations (now in effect) provide that administrative actions, including lease approvals, are to be taken "[i]n the best interest of the Indian mineral owner." *517 25 CFR 211.3 (2); see also 211.1 (stating that the overarching purpose of IMLA regulations is to ensure that Indians' mineral resources "will be developed in a manner that maximizes their best economic interests").[1] Thus, viewed in light of IMLA's legislative history and the general trust relationship between the United States and the Indians, see Mitchell -225, 396a supports the existence of a fiduciary responsibility to review mineral leases for substance to safeguard the Indians' interest.[2] I do not mean to suggest that devising a specific standard of responsibility is any simple matter, for we cannot ignore the tension between IMLA's two objectives. If we thought solely in terms of the aim to ensure that negotiated leases "maximize tribal revenues," at we would ignore the object of IMLA to provide greater tribal responsibility, against which the Secretary's oversight is acting *518 as a hedge. See Royster, Mineral Development in Indian Country: The Evolution of Tribal Control Over Mineral Resources, The more stringent the substantive obligation of the Secretary, the less the scope of tribal responsibility. The Court, however, errs in the opposite direction, giving overriding weight to the interest of tribal autonomy to the point of concluding that the Secretary's approval obligation cannot be an onerous one, ante, at 508, thus losing sight of the mixture of congressional objectives. The standard of responsibility simply cannot give the whole hog to the one congressional policy or the other. While this is not the case to essay any ultimate formulation of a balanced standard, even a reticent formulation of the fiduciary obligation would require the Secretary to withhold approval if he had good reason to doubt that the negotiated rate was within the range of reasonable market rates for the coal in question, or if he had reason to know that the had been placed under an unfair disadvantage at the negotiating table by his very own acts. See Restatement (Second) of Trusts 170, 173, 174, 176 (1957). And those modest standards are enough to keep the present suit in court, for the has pleaded a breach of trust in each respect and has submitted evidence to get past summary judgment on either alternative. The record discloses serious indications that the 12½ percent royalty rate in the lease amendments was substantially less than fair market value for the 's high quality coal. In the course of deciding that 20 percent would be a reasonable adjustment under the terms of the lease, the Area Director of the Board of Indian Affairs (BIA) considered several independent economic studies, each one of them recommending rates around 20 percent, and one specifically rejecting 12½ percent as "inadequate." App. 6-7 (internal *519 quotation marks omitted).[3] These conclusions were confirmed by the expert from the BIA's Energy and Mineral Division, in a supplemental report submitted after Peabody appealed the Area Director's decision. That report not only endorsed the 20 percent rate, but expressly found that the royalty rate "should be much higher than the 12.5% that the Federal Government receives for surface-mined coal" because the Navajo coal is "extremely valuable." No federal study ever recommended a royalty rate under 20 percent, and yet the Secretary approved a rate little more than half that. When this case was before the Federal Circuit, Judge Schall took the sensible position that the Secretary was obligated to obtain an independent market study to assess the rate in these circumstances, see (1) and the record as it stands shows the Secretary to be clearly open to the claim of fiduciary breach for approving the rate on the information he is said to have had. Of course I recognize that the Secretary's obligation is to approve leases, not royalty rates in isolation, but an allegation that he approved an otherwise unjustified rate apparently well below market for the particular resource deposit certainly raises a claim of breach. *520 What is more, the has made a powerful showing that the Secretary knew perfectly well how his own intervention on behalf of Peabody had derailed the lease adjustment proceeding that would in all probability have yielded the 20 percent rate. After his ex parte meeting with Peabody's representatives, the Secretary put his name on the memorandum, drafted by Peabody, directing Deputy Assistant Secretary Fritz to withhold his decision affirming the 20 percent rate; directing him to mislead the by telling it that no decision on the merits of the adjustment was imminent, when in fact the affirmance had been prepared for Fritz's signature; and directing him to encourage the to shift its attention from the Area Director's appealed award of 20 percent and return to the negotiating table, where 20 percent was never even a possibility. App. 117-118. The purpose and predictable effect of these actions was to induce the to take a deep discount in the royalty rate in the face of what the feared would otherwise be prolonged revenue loss and uncertainty. The point of this evidence is not that the Secretary violated some rule of procedure for administrative appeals, ante, at 512-513, or some statutory duty regarding royalty adjustments under the terms of the earlier lease. What these facts support is the 's claim that the Secretary defaulted on his fiduciary responsibility to withhold approval of an inadequate lease accepted by the while under a disadvantage the Secretary himself had intentionally imposed.[4] *521 All of this is not to say that the would end up with a recovery at the end of the day. Disputed facts have not been tried; the negotiations affected not only the 1964 lease that was subject to adjustment on demand, but also other leases apparently not subject to the same option for the 's benefit; and the renegotiated terms affected lease provisions other than royalties (including tax terms). For all we can say now, the net of all these changes may have been an overall bargain in the 's interest, despite the smaller royalty figure in the lease as approved. But the only issue here is whether the 's claims address one or more specific statutory obligations, as in Mitchell at the level of fiduciary duty whose breach is compensable in damages. The has pleaded such duty, the record shows that the has a case to try, and I respectfully dissent.

Justice Kennedy

majority

Hohn v. United States

1998-06-22

https://www.courtlistener.com/opinion/118230/hohn-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118230/

1997-087

We granted certiorari to determine whether the Court has jurisdiction to review decisions of the courts of appeals denying *239 applications for certificates of appealability. The Court, we hold, does have jurisdiction. I In 1992, petitioner Arnold Hohn was charged with a number of drug-related offenses, including the use or carrying of a firearm during and in relation to a drug trafficking offense, 18 U.S. C. § 924(c)(1). Over defense counsel's objection, the District Court instructed the jury that "use" of a firearm meant having the firearm "available to aid in the commission of" the offense. App. 7, 32. The jury convicted Hohn on all counts. Hohn did not challenge the instruction in his direct appeal, and the Court of Appeals affirmed. United States v. Hohn, 8 F.3d 1301 (CA8 1993). Two years after Hohn's conviction became final, we held the term "use" in § 924(c)(1) required active employment of the firearm. Proximity and accessibility alone were not sufficient. Bailey v. United States, 516 U.S. 137 (1995). Hohn filed a pro se motion under 28 U.S. C. § 2255 to vacate his 18 U.S. C. § 924(c)(1) conviction in light of Bailey on the grounds the evidence presented at his trial was insufficient to prove use of a firearm. Although the Government conceded the jury instruction given at Hohn's trial did not comply with Bailey, the District Court denied relief because, in its view, Hohn had waived the claim by failing to challenge the instruction on direct appeal. While Hohn's motion was pending before the District Court, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Section 102 of AEDPA amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— *240 "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or "(B) the final order in a proceeding under section 2255." 28 U.S. C. § 2253(c)(1) (1994 ed., Supp. II). Certificates of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." § 2253(c)(2). Hohn filed a notice of appeal on July 29, 1996, three months after AEDPA's enactment. The Court of Appeals treated the notice of appeal as an application for a certificate of appealability and referred it to a three-judge panel. The panel decided Hohn's application did not meet the standard for a § 2253(c) certificate. In the panel's view, "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." 99 F.3d 892, 893 (CA8 1996). Given this determination, the panel declined to issue a certificate of appealability. Judge McMillian dissented. In his view, Bailey cast doubt on whether Hohn's conduct in fact violated 18 U.S. C. § 924(c)(1). The Due Process Clause, he reasoned, does not "tolerat[e] convictions for conduct that was never criminal," so Hohn had made a sufficient showing of a constitutional deprivation. 99 F.3d, at 895. When the Court of Appeals denied Hohn's rehearing petition and a suggestion for rehearing en banc, four judges noted they would have granted the suggestion. Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U.S. C. § 1254(1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession. We may not vacate and remand, of course, unless we first have jurisdiction over the *241 case; and since Hohn and the Government both argue in favor of our jurisdiction, we appointed an amicus curiae to argue the contrary position. 522 U.S. 944 (1997). II Title 28 U.S. C. § 1254 is the statute most often invoked for jurisdiction in this Court. It provides in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: "(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." The first phrase of the quoted statute confines our jurisdiction to "[c]ases in" the courts of appeals. Nixon v. Fitzgerald, 457 U.S. 731, 741-742 (1982). The question is whether an application for a certificate meets the description. There can be little doubt that Hohn's application for a certificate of appealability constitutes a case under § 1254(1). As we have noted, "[t]he words `case' and `cause' are constantly used as synonyms in statutes . . . , each meaning a proceeding in court, a suit, or action." Blyew v. United States, 13 Wall. 581, 595 (1872). The dispute over Hohn's entitlement to a certificate falls within this definition. It is a proceeding seeking relief for an immediate and redressable injury, i. e., wrongful detention in violation of the Constitution. There is adversity as well as the other requisite qualities of a "case" as the term is used in both Article III of the Constitution and the statute here under consideration. This is significant, we think, for cases are addressed in the ordinary course of the judicial process, and, as a general rule, when the district court has denied relief and applicable requirements of finality have been satisfied, the next step is review in the court of appeals. That the statute permits the certificate to be issued by a "circuit justice or judge" does not mean the action of the circuit judge in denying the certificate *242 is his or her own action, rather than the action of the court of appeals to whom the judge is appointed. The course of events here illustrates the point. The application moved through the Eighth Circuit in the same manner as cases in general do. The matter was entered on the docket of the Court of Appeals, submitted to a panel, and decided in a published opinion, including a dissent. App. 4-5. The court entered judgment on it, issued a mandate, and entertained a petition for rehearing and suggestion for rehearing en banc. Id., at 5-6. The Eighth Circuit has since acknowledged its rejection of Hohn's application made Circuit law. United States v. Apker, 101 F.3d 75 (CA8 1996), cert. pending, No. 97-5460. One judge specifically indicated he was bound by the decision even though he believed it was wrongly decided. 101 F.3d, at 75-76 (Henley, J., concurring in result). These factors suggest Hohn's certificate application was as much a case in the Court of Appeals as are the other matters decided by it. We also draw guidance from the fact that every Court of Appeals except the Court of Appeals for the District of Columbia Circuit has adopted Rules to govern the disposition of certificate applications. E. g., Rules 22, 22.1 (CA1 1998); Rules 22, 27(b) and (f) (CA2 1998); Rules 3.4, 22.1, 111.3(b) and (c), 111.4(a) and (b)(vii) (CA3 1998); Rules 22(a) and (b)(3)(g), 34(b) (CA4 1998); Rules 8.1(g), 8.6, 8.10, 22, 27.2.3 (CA5 1998); Rules 28(f), (g), and (j) (CA6 1998); Rules 22(a)(2), (h)(2), and (h)(3)(i), 22.1 (CA7 1998); Rules 22A(d), 27B(b)(2) and (c)(2) (CA8 1998); Rules 3-1(b), 22-2, 22-3(a)(3) and (b)(4), 22-4(c), 22-5(c), (d)(1), (d)(3), and (e) (CA9 1998); Rules 11.2(b), 22.1, 22.2.3 (CA10 1998); Rules 22-1, 22-3(a)(3), (a)(4), (a)(6), and (a)(7), and (b), 27-1(d)(3) (CA11 1998). We also note the Internal Operating Procedures for the Court of Appeals for the Eighth Circuit require certificate applications to be heard as a general matter by three-judge administrative panels. Internal Operating Procedures, pt. I.D.3 (1998); see also Interim Processing Guidelines for Certificates *243 of Appealability under 28 U.S. C. § 2253 and for Motions under 28 U.S. C. § 2244, pt. I (CA1), 28 U.S. C. A., p. 135 (1998 Pamphlet); Internal Operating Procedures 10.3.2, 15.1 (CA3 1998); Criminal Justice Act Implementation Plan, pt. I.2 (CA4), 28 U.S. C. A., p. 576 (1998 Pamphlet); Internal Operating Procedures 1(a)(1) and (c)(7) (CA7 1998); Rule 27-1, Advisory Committee Note (1) (CA9), 28 U.S. C. A., p. 290 (1998 Pamphlet); Emergency General Order in re Procedures Regarding the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act (CA10), 28 U.S. C. A., p. 487 (1998 Pamphlet); Internal Operating Procedure 11, following Rule 47-6 (CA11 1998). These directives would be meaningless if applications for certificates of appealability were not matters subject to the control and disposition of the courts of appeals. It is true the President appoints "circuit judges for the several circuits," 28 U.S. C. § 44, but it is true as well the court of appeals "consist[s] of the circuit judges of the circuit in regular active service," § 43. In this instance, as in all other cases of which we are aware, the order denying the certificate was issued in the name of the court and under its seal. That is as it should be, for the order was judicial in character and had consequences with respect to the finality of the order of the District Court and the continuing jurisdiction of the Court of Appeals. The Federal Rules of Appellate Procedure make specific provision for consideration of applications for certificates of appealability by the entire court. Rule 22(b) states: "In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. . . . If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit *244 judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals." On its face, the Rule applies only to state, and not federal, prisoners. It is nonetheless instructive on the proper construction of § 2253(c). Rule 22(b) by no means prohibits application to an individual judge, nor could it, given the language of the statute. There would be incongruity, nevertheless, were the same ruling deemed in one instance the order of a judge acting ex curia and in a second the action of the court, depending upon the caption of the application or the style of the order. Our conclusion is further confirmed by Federal Rule of Appellate Procedure 27(c). It states: "In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court." As the Rule makes clear, even when individual judges are authorized under the Rules to entertain certain requests for relief, the court may review their decisions. The Eighth Circuit's Rules are even more explicit, specifically listing grants of certificates of probable cause by an individual judge as one of the decisions subject to revision by the court under Federal Rule 27(c). Rule 27B(b)(2) (CA8 1998). The recognition *245 that decisions made by individual circuit judges remain subject to correction by the entire court of appeals reinforces our determination that decisions with regard to an application for a certificate of appealability should be regarded as an action of the court itself and not of the individual judge. We must reject the suggestion contained in the Advisory Committee's Notes on Federal Rule of Appellate Procedure 22(b) that "28 U.S. C. § 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U.S. C. App., p. 609. It is more consistent with the Federal Rules and the uniform practice of the courts of appeals to construe § 2253(c)(1) as conferring the jurisdiction to issue certificates of appealability upon the court of appeals rather than by a judge acting under his or her own seal. See In re Burwell, 350 U.S. 521, 522 (1956). Some early cases from this Court acknowledged a distinction between acting in an administrative and a judicial capacity. When judges perform administrative functions, their decisions are not subject to our review. United States v. Ferreira, 13 How. 40, 51-52 (1852); see also Gordon v. United States, 117 U. S. Appx. 697, 702, 704 (1864). Those opinions were careful to say it was the nonjudicial character of the judges' actions which deprived this Court of jurisdiction. Ferreira, supra, at 46-47 (tribunal not judicial when the proceedings were ex parte and did not involve the issuance of process, summoning of witnesses, or entry of a judgment); Gordon, supra, at 699, 702 (tribunal not judicial when it lacks power to enter and enforce judgments). Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here. App. 4-6. Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the *246 decision of an Article III court. In light of the constitutional questions which would surround such an arrangement, see Gordon, supra; Hayburn's Case, 2 Dall. 409 (1792), we should avoid any such implication. We further disagree with the contention, advanced by the dissent and by Court-appointed amicus, that a request to proceed before a court of appeals should be regarded as a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals. Precedent forecloses this argument. In Ex parte Quirin, 317 U.S. 1 (1942), we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U.S. C. § 225(a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions "[i]n the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court"). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, "[p]resentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals." 317 U.S., at 24. We reached a similar conclusion in Nixon v. Fitzgerald. There President Nixon sought to appeal an interlocutory District Court order rejecting his claim of absolute immunity. The Court of Appeals summarily dismissed the appeal because, in its view, the order failed to present a "serious and unsettled question" of law sufficient to bring the case within the collateral order doctrine announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 547 (1949). Because the Court of Appeals had dismissed for failure to *247 satisfy this threshold jurisdictional requirement, respondent Fitzgerald argued, "the District Court's order was not an appealable `case' properly `in' the Court of Appeals within the meaning of § 1254." 457 U.S., at 742. Turning aside this argument, we ruled "petitioner did present a `serious and unsettled' and therefore appealable question to the Court of Appeals. It follow[ed] that the case was `in' the Court of Appeals under § 1254 and properly within our certiorari jurisdiction." Id., at 743. We elaborated: "There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction. . . . If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court." Id., at 743, n. 23; see also United States v. Nixon, 418 U.S. 683, 692 (1974) (holding appeal of District Court's denial of motion to quash subpoena duces tecum was in the Court of Appeals for purposes of § 1254(1)). We have shown no doubts about our jurisdiction to review dismissals by the Courts of Appeals for failure to file a timely notice of appeal under § 1254(1). The filing of a proper notice of appeal is mandatory and jurisdictional. Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 (1988); United States v. Robinson, 361 U.S. 220, 224 (1960); Advisory Committee's Notes on Fed. Rule App. Proc. 3, 28 U.S. C. App., p. 589. The failure to satisfy this jurisdictional prerequisite has not kept the case from entering the Court of Appeals, however. We have reviewed these dismissals often and without insisting the petitioner satisfy the requirements for an extraordinary writ and without suggesting our lack of jurisdiction to do so. E. g., Houston v. Lack, 487 U.S. 266 (1988); Torres, supra; Fallen v. United States, 378 U.S. 139 (1964); United States v. Robinson, supra; Leishman v. Associated Wholesale Elec. Co., 318 U.S. 203 (1943). We have also held that § 1254(1) permits us to review denials of motions for leave to intervene in the Court of Appeals in proceedings to review the decision of an administrative *248 agency. Automobile Workers v. Scofield, 382 U.S. 205, 208-209 (1965); see also Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U.S. 27, 30 (1993) (per curiam). Together these decisions foreclose the proposition that the failure to satisfy a threshold prerequisite for court of appeals jurisdiction, such as the issuance of a certificate of appealability, prevents a case from being in the court of appeals for purposes of § 1254(1). It would have made no difference had the Government declined to oppose Hohn's application for a certificate of appealability. In Scofield, we held that § 1254(1) gave us jurisdiction to review the Court of Appeals' denial of a motion for leave to intervene despite the fact that neither the agency nor any of the other parties opposed intervention. 382 U.S., at 207. In the same manner, petitions for certiorari to this Court are often met with silence or even acquiescence; yet no one would suggest this deprives the petitions of the adversity needed to constitute a case. Assuming, of course, the underlying action satisfies the other requisites of a case, including injury in fact, the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter. For instance, a case does not lack adversity simply because the remedy sought from a particular court is dismissal for improper venue rather than resolution of the merits. Federal Rule of Civil Procedure 12(b)(3) specifically permits a party to move to dismiss for improper venue before joining issue on any substantive point through the filing of a responsive pleading, and we have long treated appeals of dismissals for improper venue as cases in the courts of appeals, see, e. g., Radzanower v. Touche Ross & Co., 426 U.S. 148, 151 (1976); Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 707 (1972); Schnell v. Peter Eckrich & Sons, Inc., 365 U.S. 260, 261 (1961); Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 223 (1957); Mis- *249 sissippi Publishing Corp. v. Murphree, 326 U.S. 438, 440 (1946). It is true we have held appellate jurisdiction improper when district courts have denied, rather than granted, motions to dismiss for improper venue. The jurisdictional problem in those cases, however, was the interlocutory nature of the appeal, not the absence of a proper case. Lauro Lines s.r.l. v. Chasser, 490 U.S. 495 (1989); Van Cauwenberghe v. Biard, 486 U.S. 517 (1988). In any event, concerns about adversity are misplaced in this case. Here the Government entered an appearance in response to the initial application and filed a response opposing Hohn's petition for rehearing and suggestion for rehearing en banc. App. 4, 5. The argument that this Court lacks jurisdiction under § 1254(1) to review threshold jurisdictional inquiries is further refuted by the recent amendment to 28 U.S. C. § 2244(b)(3). The statute requires state prisoners filing second or successive habeas applications under § 2254 to first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S. C. § 2244(b)(3)(A) (1994 ed., Supp. II). The statute further provides "[t]he grant or denial of an authorization by a court of appeals 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). It would have been unnecessary to include a provision barring certiorari review if a motion to file a second or successive application would not otherwise have constituted a case in the court of appeals for purposes of 28 U.S. C. § 1254(1). We are reluctant to adopt a construction making another statutory provision superfluous. See, e. g., Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998); United States v. Menasche, 348 U.S. 528, 538-539 (1955). Inclusion of a specific provision barring certiorari review of denials of motions to file second or successive applications is instructive for another reason. The requirements for certificates *250 of appealability and motions for second or successive applications were enacted in the same statute. The clear limit on this Court's jurisdiction to review denials of motions to file second or successive petitions by writ of certiorari contrasts with the absence of an analogous limitation to certiorari review of denials of applications for certificates of appealability. True, the phrase concerning the grant or denial of second or successive applications refers to an action "by a court of appeals"; still, we think a Congress concerned enough to bar our jurisdiction in one instance would have been just as explicit in denying it in the other, were that its intention. See, e. g., 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) (other internal quotation marks omitted)). The dissent claims the absence of similar language in § 2253(c) can be explained by Congress' reliance on the rule holding certificate applications unreviewable under § 1254(1). Post, at 261-262. As we later discuss, any such reliance is lessened by the Court's consistent practice of treating denials of certificate applications as falling within its statutory certiorari jurisdiction. See infra, at 252. Today's holding conforms our commonsense practice to the statutory scheme, making it unnecessary to invoke our extraordinary jurisdiction in routine cases, which present important and meritorious claims. The United States does not dispute that Hohn's claim has considerable merit and acknowledges that the trial court committed an error of constitutional magnitude. The only contested issue is whether the constitutional violation was a substantial one. Brief in Opposition 7-8. Were we to adopt the position advanced by the dissent, the only way we could consider his meritorious claim would be through the All Writs Act, 28 U.S. C. *251 § 1651(a). Our rule permits us to carry out our normal function of reviewing possible misapplications of law by the courts of appeals without having to resort to extraordinary remedies. Our decision, we must acknowledge, is in direct conflict with the portion of our decision in House v. Mayo, 324 U.S. 42, 44 (1945) (per curiam), holding that we lack statutory certiorari jurisdiction to review refusals to issue certificates of probable cause. Given the number and frequency of the cases, and the difficulty of reconciling our practice with a requirement that only an extraordinary writ can be used to address them, we do not think stare decisis concerns require us to adhere to that decision. Its conclusion was erroneous, and it should not be followed. Stare decisis is "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989). We have recognized, however, that stare decisis is a "principle of policy" rather than "an inexorable command." Payne, supra, at 828. For example, we have felt less constrained to follow precedent where, as here, the opinion was rendered without full briefing or argument. Gray v. Mississippi, 481 U.S. 648, 651, n. 1 (1987) (questioning the precedential value of Davis v. Georgia, 429 U.S. 122 (1976) (per curiam) ). The role of stare decisis, furthermore, is "somewhat reduced . . . in the case of a procedural rule . . . which does not serve as a guide to lawful behavior." United States v. Gaudin, 515 U.S. 506, 521 (1995) (citing Payne, supra, at *252 828). Here we have a rule of procedure that does not alter primary conduct. And what is more, the rule of procedure announced in House v. Mayo has often been disregarded in our own practice. Both Hohn and the United States cite numerous instances in which we have granted writs of certiorari to review denials of certificate applications without requiring the petitioner to move for leave to file for an extraordinary writ, as previously required by our rules, and without requiring any extraordinary showing or exhibiting any doubts about our jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4036, pp. 15-16 (2d ed. 1988) (collecting cases). Included among these examples are several noteworthy decisions which resolved significant issues of federal law. See, e. g., Allen v. Hardy, 478 U.S. 255, 257-258 (1986) (per curiam) (refusing to permit retroactive application of Batson v. Kentucky, 476 U.S. 79 (1986), on collateral attack); Lynce v. Mathis, 519 U.S. 433, 436 (1997) (holding the cancellation of early release credits violated the Ex Post Facto Clause). These deviations have led litigants and the legal community to question the vitality of the rule announced in House v. Mayo. As commentators have observed: "More recent cases . . . have regularly granted certiorari following denial of leave to proceed in forma pauperis, or refusal to certify probable cause, without any indication that review was by common law writ rather than statutory certiorari. At least as to these two questions, statutory certiorari should be available." Wright, Miller, & Cooper, supra, at 15-16 (footnotes omitted). Our frequent disregard for the rule announced in House v. Mayo weakens the suggestion that Congress could have placed significant reliance on it, especially in light of the commentary on our practice in the legal literature. This is not to say opinions passing on jurisdictional issues sub silentio may be said to have overruled an opinion addressing the issue directly. See, e. g., United States v. More, 3 Cranch 159, 172 (1805) (Marshall, C. J.). Our decisions remain *253 binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Once we have decided to reconsider a particular rule, however, we would be remiss if we did not consider the consistency with which it has been applied in practice. Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); see also Brown Shoe Co. v. United States, 370 U.S. 294, 307 (1962). This consideration, when combined with our analysis of the legal issue in question, convinces us the contrary holding of House v. Mayo cannot stand. We hold this Court has jurisdiction under § 1254(1) to review denials of applications for certificates of appealability by a circuit judge or a panel of a court of appeals. The portion of House v. Mayo holding this Court lacks statutory certiorari jurisdiction over denials of certificates of probable cause is overruled. In light of the position asserted by the Solicitor General in the brief for the United States filed August 18, 1997, the judgment of the Court of Appeals is vacated, and the case is remanded for further consideration consistent with this opinion. It is so ordered.

We granted certiorari to determine whether the Court has jurisdiction to review decisions of the courts of appeals denying *9 applications for certificates of appealability. The Court, we hold, does have jurisdiction. I In 1992, petitioner Arnold Hohn was charged with a number of drug-related offenses, including the use or carrying of a firearm during and in relation to a drug trafficking offense, 18 U.S. C. 924(c)(1). Over defense counsel's objection, the District Court instructed the jury that "use" of a firearm meant having the firearm "available to aid in the commission of" the offense. App. 7, 32. The jury convicted Hohn on all counts. Hohn did not challenge the instruction in his direct appeal, and the Court of Appeals affirmed. United Two years after Hohn's conviction became final, we held the term "use" in 924(c)(1) required active employment of the firearm. Proximity and accessibility alone were not sufficient. Hohn filed a pro se motion under 28 U.S. C. 2255 to vacate his 18 U.S. C. 924(c)(1) conviction in light of Bailey on the grounds the evidence presented at his trial was insufficient to prove use of a firearm. Although the Government conceded the jury instruction given at Hohn's trial did not comply with Bailey, the District Court denied relief because, in its view, Hohn had waived the claim by failing to challenge the instruction on direct appeal. While Hohn's motion was pending before the District Court, Congress enacted the Antiterrorism and Effective Death Penalty Act of (AEDPA), Section 102 of AEDPA amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— *240 "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or "(B) the final order in a proceeding under section 2255." 28 U.S. C. 2253(c)(1) (1994 ed., Supp. II). Certificates of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 2253(c)(2). Hohn filed a notice of appeal on July 29, three months after AEDPA's enactment. The Court of Appeals treated the notice of appeal as an application for a certificate of appealability and referred it to a three-judge panel. The panel decided Hohn's application did not meet the standard for a 2253(c) certificate. In the panel's view, "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." Given this determination, the panel declined to issue a certificate of appealability. Judge McMillian dissented. In his view, Bailey cast doubt on whether Hohn's conduct in fact violated 18 U.S. C. 924(c)(1). The Due Process Clause, he reasoned, does not "tolerat[e] convictions for conduct that was never criminal," so Hohn had made a sufficient showing of a constitutional When the Court of Appeals denied Hohn's rehearing petition and a suggestion for rehearing en banc, four judges noted they would have granted the suggestion. Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U.S. C. 1254(1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession. We may not vacate and remand, of course, unless we first have jurisdiction over the *241 case; and since Hohn and the Government both argue in favor of our jurisdiction, we appointed an amicus curiae to argue the contrary position. II Title 28 U.S. C. 1254 is the statute most often invoked for jurisdiction in this Court. It provides in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: "(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." The first phrase of the quoted statute confines our jurisdiction to "[c]ases in" the courts of appeals. The question is whether an application for a certificate meets the description. There can be little doubt that Hohn's application for a certificate of appealability constitutes a case under 1254(1). As we have noted, "[t]he words `case' and `cause' are constantly used as synonyms in statutes each meaning a proceeding in court, a suit, or action." The dispute over Hohn's entitlement to a certificate falls within this definition. It is a proceeding seeking relief for an immediate and redressable injury, i. e., wrongful detention in violation of the Constitution. There is adversity as well as the other requisite qualities of a "case" as the term is used in both Article III of the Constitution and the statute here under consideration. This is significant, we think, for cases are addressed in the ordinary course of the judicial process, and, as a general rule, when the district court has denied relief and applicable requirements of finality have been satisfied, the next step is review in the court of appeals. That the statute permits the certificate to be issued by a "circuit justice or judge" does not mean the action of the circuit judge in denying the certificate *242 is his or her own action, rather than the action of the court of appeals to whom the judge is appointed. The course of events here illustrates the point. The application moved through the Eighth Circuit in the same manner as cases in general do. The matter was entered on the docket of the Court of Appeals, submitted to a panel, and decided in a published opinion, including a dissent. App. 4-5. The court entered judgment on it, issued a mandate, and entertained a petition for rehearing and suggestion for rehearing en banc. The Eighth Circuit has since acknowledged its rejection of Hohn's application made Circuit law. United cert. pending, No. 97-5460. One judge specifically indicated he was bound by the decision even though he believed it was wrongly -76 These factors suggest Hohn's certificate application was as much a case in the Court of Appeals as are the other matters decided by it. We also draw guidance from the fact that every Court of Appeals except the Court of Appeals for the District of Columbia Circuit has adopted Rules to govern the disposition of certificate applications. E. g., Rules 22, 22.1 ; Rules 22, 27(b) and (f) ; Rules 3.4, 22.1, 111.3(b) and (c), 111.4(a) and (b)(vii) ; Rules 22(a) and (b)(3)(g), 34(b) ; Rules 8.1(g), 8.6, 8.10, 22, 27.2.3 ; Rules 28(f), (g), and (j) ; Rules 22(a)(2), (h)(2), and (h)(3)(i), 22.1 ; Rules 22A(d), 27B(b)(2) and (c)(2) ; Rules 3-1(b), 22-2, 22-3(a)(3) and (b)(4), 22-4(c), 22-5(c), (d)(1), (d)(3), and (e) ; Rules 11.2(b), 22.1, 22.2.3 ; Rules 22-1, 22-3(a)(3), (a)(4), (a)(6), and (a)(7), and (b), 27-1(d)(3) We also note the Internal Operating Procedures for the Court of Appeals for the Eighth Circuit require certificate applications to be heard as a general matter by three-judge administrative panels. Internal Operating Procedures, pt. I.D.3 ; see also Interim Processing Guidelines for Certificates *243 of Appealability under 28 U.S. C. 2253 and for Motions under 28 U.S. C. 4, pt. I (CA1), 28 U.S. C. A., p. 135 (1998 Pamphlet); Internal Operating Procedures 10.3.2, 15.1 ; Criminal Justice Act Implementation Plan, pt. I.2 (CA4), 28 U.S. C. A., p. 576 (1998 Pamphlet); Internal Operating Procedures 1(a)(1) and (c)(7) ; Rule 27-1, Advisory Committee Note (1) (CA9), 28 U.S. C. A., p. 290 (1998 Pamphlet); Emergency General Order in re Procedures Regarding the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act (CA10), 28 U.S. C. A., p. 487 (1998 Pamphlet); Internal Operating Procedure 11, following Rule 47-6 These directives would be meaningless if applications for certificates of appealability were not matters subject to the control and disposition of the courts of appeals. It is true the President appoints "circuit judges for the several circuits," 28 U.S. C. but it is true as well the court of appeals "consist[s] of the circuit judges of the circuit in regular active service," 43. In this instance, as in all other cases of which we are aware, the order denying the certificate was issued in the name of the court and under its seal. That is as it should be, for the order was judicial in character and had consequences with respect to the finality of the order of the District Court and the continuing jurisdiction of the Court of Appeals. The Federal Rules of Appellate Procedure make specific provision for consideration of applications for certificates of appealability by the entire court. Rule 22(b) states: "In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit *2 judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals." On its face, the Rule applies only to state, and not federal, prisoners. It is nonetheless instructive on the proper construction of 2253(c). Rule 22(b) by no means prohibits application to an individual judge, nor could it, given the language of the statute. There would be incongruity, nevertheless, were the same ruling deemed in one instance the order of a judge acting ex curia and in a second the action of the court, depending upon the caption of the application or the style of the order. Our conclusion is further confirmed by Federal Rule of Appellate Procedure 27(c). It states: "In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court." As the Rule makes clear, even when individual judges are authorized under the Rules to entertain certain requests for relief, the court may review their decisions. The Eighth Circuit's Rules are even more explicit, specifically listing grants of certificates of probable cause by an individual judge as one of the decisions subject to revision by the court under Federal Rule 27(c). Rule 27B(b)(2) The recognition *245 that decisions made by individual circuit judges remain subject to correction by the entire court of appeals reinforces our determination that decisions with regard to an application for a certificate of appealability should be regarded as an action of the court itself and not of the individual judge. We must reject the suggestion contained in the Advisory Committee's Notes on Federal Rule of Appellate Procedure 22(b) that "28 U.S. C. 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U.S. C. App., p. 609. It is more consistent with the Federal Rules and the uniform practice of the courts of appeals to construe 2253(c)(1) as conferring the jurisdiction to issue certificates of appealability upon the court of appeals rather than by a judge acting under his or her own seal. See In re Burwell, Some early cases from this Court acknowledged a distinction between acting in an administrative and a judicial capacity. When judges perform administrative functions, their decisions are not subject to our review. United ; see also v. United States, 117 U. S. Appx. 697, 702, 704 (1864). Those opinions were careful to say it was the nonjudicial character of the judges' actions which deprived this Court of jurisdiction. (tribunal not judicial when the proceedings were ex parte and did not involve the issuance of process, summoning of witnesses, or entry of a judgment); Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here. App. 4-6. Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the *246 decision of an Article III court. In light of the constitutional questions which would surround such an arrangement, see Hayburn's Case, we should avoid any such implication. We further disagree with the contention, advanced by the dissent and by Court-appointed amicus, that a request to proceed before a court of appeals should be regarded as a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals. Precedent forecloses this argument. In Ex parte Quirin, we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U.S. C. 225(a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions "[i]n the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court"). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, "[p]resentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals." We reached a similar conclusion in There President Nixon sought to appeal an interlocutory District Court order rejecting his claim of absolute immunity. The Court of Appeals summarily dismissed the appeal because, in its view, the order failed to present a "serious and unsettled question" of law sufficient to bring the case within the collateral order doctrine announced in Because the Court of Appeals had dismissed for failure to *247 satisfy this threshold jurisdictional requirement, respondent Fitzgerald argued, "the District Court's order was not an appealable `case' properly `in' the Court of Appeals within the meaning of 1254." Turning aside this argument, we ruled "petitioner did present a `serious and unsettled' and therefore appealable question to the Court of Appeals. It follow[ed] that the case was `in' the Court of Appeals under 1254 and properly within our certiorari jurisdiction." We elaborated: "There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction. If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court." n. ; see also United (holding appeal of District Court's denial of motion to quash subpoena duces tecum was in the Court of Appeals for purposes of 1254(1)). We have shown no doubts about our jurisdiction to review dismissals by the Courts of Appeals for failure to file a timely notice of appeal under 1254(1). The filing of a proper notice of appeal is mandatory and jurisdictional. ; United ; Advisory Committee's Notes on Fed. Rule App. Proc. 3, 28 U.S. C. App., p. 589. The failure to satisfy this jurisdictional prerequisite has not kept the case from entering the Court of Appeals, however. We have reviewed these dismissals often and without insisting the petitioner satisfy the requirements for an extraordinary writ and without suggesting our lack of jurisdiction to do so. E. g., ; ; United We have also held that 1254(1) permits us to review denials of motions for leave to intervene in the Court of Appeals in proceedings to review the decision of an administrative *248 agency. Automobile ; see also Izumi Seimitsu Kogyo Kabushiki Together these decisions foreclose the proposition that the failure to satisfy a threshold prerequisite for court of appeals jurisdiction, such as the issuance of a certificate of appealability, prevents a case from being in the court of appeals for purposes of 1254(1). It would have made no difference had the Government declined to oppose Hohn's application for a certificate of appealability. In Scofield, we held that 1254(1) gave us jurisdiction to review the Court of Appeals' denial of a motion for leave to intervene despite the fact that neither the agency nor any of the other parties opposed In the same manner, petitions for certiorari to this Court are often met with silence or even acquiescence; yet no one would suggest this deprives the petitions of the adversity needed to constitute a case. Assuming, of course, the underlying action satisfies the other requisites of a case, including injury in fact, the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter. For instance, a case does not lack adversity simply because the remedy sought from a particular court is dismissal for improper venue rather than resolution of the merits. Federal Rule of Civil Procedure 12(b)(3) specifically permits a party to move to dismiss for improper venue before joining issue on any substantive point through the filing of a responsive pleading, and we have long treated appeals of dismissals for improper venue as cases in the courts of appeals, see, e. g., ; Brunette Machine Works, ; ; Fourco Glass ; Mis- *249 sissippi Publishing It is true we have held appellate jurisdiction improper when district courts have denied, rather than granted, motions to dismiss for improper venue. The jurisdictional problem in those cases, however, was the interlocutory nature of the appeal, not the absence of a proper case. Lauro Lines ; Van In any event, concerns about adversity are misplaced in this case. Here the Government entered an appearance in response to the initial application and filed a response opposing Hohn's petition for rehearing and suggestion for rehearing en banc. App. 4, 5. The argument that this Court lacks jurisdiction under 1254(1) to review threshold jurisdictional inquiries is further refuted by the recent amendment to 28 U.S. C. 4(b)(3). The statute requires state prisoners filing second or successive habeas applications under 2254 to first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S. C. 4(b)(3)(A) (1994 ed., Supp. II). The statute further provides "[t]he grant or denial of an authorization by a court of appeals 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." 4(b)(3)(E). It would have been unnecessary to include a provision barring certiorari review if a motion to file a second or successive application would not otherwise have constituted a case in the court of appeals for purposes of 28 U.S. C. 1254(1). We are reluctant to adopt a construction making another statutory provision superfluous. See, e. g., ; United Inclusion of a specific provision barring certiorari review of denials of motions to file second or successive applications is instructive for another reason. The requirements for certificates *250 of appealability and motions for second or successive applications were enacted in the same statute. The clear limit on this Court's jurisdiction to review denials of motions to file second or successive petitions by writ of certiorari contrasts with the absence of an analogous limitation to certiorari review of denials of applications for certificates of appealability. True, the phrase concerning the grant or denial of second or successive applications refers to an action "by a court of appeals"; still, we think a Congress concerned enough to bar our jurisdiction in one instance would have been just as explicit in denying it in the other, were that its intention. See, e. g., U.S. 29- ). The dissent claims the absence of similar language in 2253(c) can be explained by Congress' reliance on the rule holding certificate applications unreviewable under 1254(1). Post, at -2. As we later discuss, any such reliance is lessened by the Court's consistent practice of treating denials of certificate applications as falling within its statutory certiorari jurisdiction. See infra, at 252. Today's holding conforms our commonsense practice to the statutory scheme, making it unnecessary to invoke our extraordinary jurisdiction in routine cases, which present important and meritorious claims. The United States does not dispute that Hohn's claim has considerable merit and acknowledges that the trial court committed an error of constitutional magnitude. The only contested issue is whether the constitutional violation was a substantial one. Brief in Opposition 7-8. Were we to adopt the position advanced by the dissent, the only way we could consider his meritorious claim would be through the All Writs Act, 28 U.S. C. *251 1651(a). Our rule permits us to carry out our normal function of reviewing possible misapplications of law by the courts of appeals without having to resort to extraordinary remedies. Our decision, we must acknowledge, is in direct conflict with the portion of our decision in holding that we lack statutory certiorari jurisdiction to review refusals to issue certificates of probable cause. Given the number and frequency of the cases, and the difficulty of reconciling our practice with a requirement that only an extraordinary writ can be used to address them, we do not think stare decisis concerns require us to adhere to that decision. Its conclusion was erroneous, and it should not be followed. Stare decisis is "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." We have recognized, however, that stare decisis is a "principle of policy" rather than "an inexorable command." For example, we have felt less constrained to follow precedent where, as here, the opinion was rendered without full briefing or argument. ). The role of stare decisis, furthermore, is "somewhat reduced in the case of a procedural rule which does not serve as a guide to lawful behavior." United (citing at *252 828). Here we have a rule of procedure that does not alter primary conduct. And what is more, the rule of procedure announced in has often been disregarded in our own practice. Both Hohn and the United States cite numerous instances in which we have granted writs of certiorari to review denials of certificate applications without requiring the petitioner to move for leave to file for an extraordinary writ, as previously required by our rules, and without requiring any extraordinary showing or exhibiting any doubts about our jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4036, pp. 15-16 (collecting cases). Included among these examples are several noteworthy decisions which resolved significant issues of federal law. See, e. g., on collateral attack); These deviations have led litigants and the legal community to question the vitality of the rule announced in As commentators have observed: "More recent cases have regularly granted certiorari following denial of leave to proceed in forma pauperis, or refusal to certify probable cause, without any indication that review was by common law writ rather than statutory certiorari. At least as to these two questions, statutory certiorari should be available." Wright, Miller, & Cooper, Our frequent disregard for the rule announced in weakens the suggestion that Congress could have placed significant reliance on it, especially in light of the commentary on our practice in the legal literature. This is not to say opinions passing on jurisdictional issues sub silentio may be said to have overruled an opinion addressing the issue directly. See, e. g., United Our decisions remain *253 binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality. Rodriguez de Once we have decided to reconsider a particular rule, however, we would be remiss if we did not consider the consistency with which it has been applied in practice. Swift & ; see also Brown Shoe 7 (19). This consideration, when combined with our analysis of the legal issue in question, convinces us the contrary holding of cannot stand. We hold this Court has jurisdiction under 1254(1) to review denials of applications for certificates of appealability by a circuit judge or a panel of a court of appeals. The portion of holding this Court lacks statutory certiorari jurisdiction over denials of certificates of probable cause is overruled. In light of the position asserted by the Solicitor General in the brief for the United States filed August 18, 1997, the judgment of the Court of Appeals is vacated, and the case is remanded for further consideration consistent with this opinion. It is so ordered.

Justice Souter

concurring

Hohn v. United States

1998-06-22

https://www.courtlistener.com/opinion/118230/hohn-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118230/

1997-087

I would be content to decide this case on the authority of House v. Mayo, 324 U.S. 42 (1945) (per curiam), that common-law certiorari is available to review the denial of the certificate, leaving House `s precarious future for another day when its precedential value might have to be faced squarely. But that course would command no more than a minority of one, and there is good reason to deny it even that support. House' s holding on what may be "`in' the court of appeals," id., at 44, was virtually unreasoned, and the Court correctly notes our subsequent practice of honoring this rule in the breach. Given the weakness of the precedent, the *254 advantage of having a clear majority for a rule governing our jurisdiction to reverse erroneous denials of certificates of appealability persuades me to join the others in overruling House insofar as it would bear on issuance of a statutory writ of certiorari under 28 U.S. C. § 1254(1).

I would be content to decide this case on the authority of that common-law certiorari is available to review the denial of the certificate, leaving House `s precarious future for another day when its precedential value might have to be faced squarely. But that course would command no more than a minority of one, and there is good reason to deny it even that support. House' s holding on what may be "`in' the court of appeals," was virtually unreasoned, and the Court correctly notes our subsequent practice of honoring this rule in the breach. Given the weakness of the precedent, the *254 advantage of having a clear majority for a rule governing our jurisdiction to reverse erroneous denials of certificates of appealability persuades me to join the others in overruling House insofar as it would bear on issuance of a statutory writ of certiorari under 28 U.S. C. 1254(1).

Justice Scalia

dissenting

Hohn v. United States

1998-06-22

https://www.courtlistener.com/opinion/118230/hohn-v-united-states/

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1997-087

Today's opinion permits review where Congress, with unmistakable clarity, has denied it. To reach this result, the Court ignores the obvious intent of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104— 132, 110 Stat. 1214, distorts the meaning of our own jurisdictional statute, 28 U.S. C. § 1254(1), and overrules a 53year-old precedent, House v. Mayo, 324 U.S. 42 (1945) (per curiam). I respectfully dissent. I This Court's jurisdiction under 28 U.S. C. § 1254(1) is limited to "[c]ases in the courts of appeals." Section 102 of AEDPA provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . .the final order in a habeas corpus proceeding under section 2255," that is, a district court habeas proceeding challenging federal custody. Petitioner, who is challenging federal custody under 28 U.S. C. § 2255, did not obtain a certificate of appealability (COA). By the plain language of AEDPA, his appeal "from" the district court's "final order" "may not be taken to the court of appeals." Because it could not be taken to the Court of Appeals, it quite obviously was never in the Court of Appeals; and because it was never in the Court of Appeals, we lack jurisdiction under § 1254(1) to entertain it. We have already squarely and explicitly endorsed this straightforward interpretation. In House v. Mayo, 324 U. S., at 44, involving the predecessors to §§ 1254(1) and *255 2253(c)(1), the statutorily required certificate was called a "certificate of probable cause" rather than a certificate of appealability, but the effect of failure to obtain it was precisely the same: The case could not proceed to the court of appeals. On an attempt to obtain review of denial of the certificate in this Court, we held that since petitioner's "case was never `in' the court of appeals, for want of a certificate," we lacked jurisdiction under § 1254(1). Ibid. The Court concedes that House is squarely on point but opts to overrule it because its "conclusion was erroneous," ante, at 251. The Court does not dispute that petitioner's § 2255 action was never in the Court of Appeals; its overruling of House is instead based on the proposition that petitioner's request for a COA is, in and of itself, a "case" within the meaning of § 1254(1), see ante, at 241-242, 246-249, and that that case was "in" the Court of Appeals and hence can be reviewed here, ante, at 241-246. Most of the Court's analysis is expended in the effort to establish that petitioner made his request for a COA to the Court of Appeals as such, rather than to the circuit judges in their individual capacity, ibid. Even that effort is unsuccessful, since it comes up against the pellucid language of AEDPA to the contrary. Section 102 does not permit application for a COA to a court of appeals; it states that the application must be made to a "circuit justice or judge." That this means precisely what it says is underscored by § 103 of AEDPA, which amends Rule 22 of the Federal Rules of Appellate Procedure: "If [a COA] request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate." As though drafted in anticipatory refutation of the Court's countertextual holding today, the Advisory Committee's Notes on Rule 22 explicitly state that "28 U.S. C. § 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U.S. C. App., p. 609. *256 Proclaiming the request for a COA to be "in" the Court of Appeals is the most obvious of the Court's statutory distortions, but not the one with the most serious collateral consequences. The latter award goes to the Court's virtually unanalyzed pronouncement (also essential to its holding) that the request for a COA was itself a "case" within the meaning of § 1254(1). The notion that a request pertaining to a case constitutes its own "case" for purposes of § 1254 is a jawdropper. To support that remarkable assertion, the Court relies upon circumstantial evidence—that the "application moved through the Eighth Circuit in the same manner as cases in general do." Ante, at 242. Does this mean that a request for a COA would not be a "case" in those Circuits that treated it differently—that permitted it to be disposed of by a single judge as Rule 22 specifically allows? Does it mean that a motion for recusal, or a request for televised coverage, or a motion to file under seal would be a "case" if the court of appeals chose to treat it in the manner the Eighth Circuit treated the request for a COA here? Surely not. An application for a COA, standing alone, does not have the requisite qualities of a legal "case" under any known definition. It does not assert a grievance against anyone, does not seek remedy or redress for any legal injury, and does not even require a "party" on the other side. It is nothing more than a request for permission to seek review. Petitioner's grievance is with respondent for unlawful custody, and the remedy he seeks is release from that custody pursuant to § 2255. The request for a COA is not some separate "case" that can subsist apart from that underlying suit; it is merely a procedural requirement that must be fulfilled before petitioner's § 2255 action—his "case" or "cause"—can advance to the appellate court. The adversity which the Court acknowledges is needed for a "case" under § 1254, see ante, at 241, is not satisfied by the dispute between petitioner and respondent as to whether the COA should be granted— *257 any more than a "case or controversy" for purposes of initial federal-court jurisdiction is created by a dispute over venue, between parties who agree on everything else.[1] As is true with most erroneous theories, a logical and consistent application of the Court's reasoning yields strange results. If dispute over the propriety of granting a COA creates a "case," the denial of a COA request that has been unopposed (or, better yet, has been supported by the Government) will be unreviewable, whereas denial of a request that is vigorously opposed will be reviewed—surely an upsidedown result. And the "case" concerning the COA will subsist even when the § 2255 suit has been mooted by the petitioner's release from prison. These bizarre consequences follow inevitably from the Court's "separate case" theory, which has been fabricated in order to achieve a result that is fundamentally at odds with the purpose of the statute. For the Court insists upon assuming, contrary to the plain import of the statute, that Congress wanted petitioner's § 2255 action to proceed "in the ordinary course of the judicial process" and to follow the "general rule" that permits an appeal from a final district court order, ibid. If this were Congress's wish, there would have been no need for § 102 of AEDPA. The whole point of that provision is to diverge from the ordinary course of the judicial process and to keep petitioner's case against respondent out of the Court of Appeals unless petitioner obtains a COA. "The certificate is a screening device, helping to conserve judicial (and prosecutorial) resources." Young v. United States, 124 F.3d 794, 799 *258 (CA7 1997). It is this unique screening function that distinguishes a COA from the jurisdictional issues discussed by the Court: Section 102 of AEDPA prevents petitioner's case from entering the Court of Appeals at all in the absence of a COA, whereas other jurisdictional determinations are made after a case is in the Court of Appeals (even if the case is later dismissed because of jurisdictional defects), ante, at 246— 249. See Rosado v. Wyman, 397 U.S. 397, 403, n. 3 (1970) (a court always has jurisdiction to determine its jurisdiction). The Court's only response to these arguments is that they are foreclosed by our precedent, since we decided an analogous issue in Ex parte Quirin, 317 U.S. 1 (1942). Ante, at 246. (The Court displays no appreciation of the delicious irony involved in its insistence upon hewing to an allegedly analogous decision while overruling the case directly in point, House. ) Quirin held that a petition for habeas corpus constituted the institution of a suit, and that it was not necessary for the writ to issue for the matter to be considered a case or controversy. 317 U.S., at 24. Quirin relied upon our decision in Ex parte Milligan, 4 Wall. 2, 110-113 (1866), which reasoned that a petition for habeas corpus is a suit because the petitioner seeks "`that remedy which the law affords him' " to recover his liberty. Id., at 113 (quoting Weston v. City Council of Charleston, 2 Pet. 449, 464 (1829)). Petitioner's request for § 2255 relief is analogous to a petition for habeas corpus, but his request for a COA is of a wholly different nature. That is no "remedy" for any harm, but a threshold procedural requirement that petitioner must meet in order to carry his § 2255 suit to the appellate stage. That is why the Court in House, decided less than three years after Quirin, did not treat the application for a certificate as a separate case but did recognize the petition for habeas corpus as a case even though it was decided without a hearing or a call for a return. 324 U.S., at 43. I have described above why House was entirely correct, but a few words are in order concerning the inappropriateness *259 of overruling House, regardless of its virtue as an original matter. "[T]he burden borne by the party advocating abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction." Patterson v. McLean Credit Union, 491 U.S. 164, 172-173 (1989); see also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). The Court acknowledges this principle, but invokes cases of ours that say that stare decisis concerns are "`somewhat reduced' " in the case of a procedural rule. Ante, at 251. The basis for that principle, of course, is that procedural rules do not ordinarily engender detrimental reliance—and in this case, as I shall discuss, detrimental reliance by the Congress of the United States is self-evident. In any event, even those cases cited by the Court as applying the "somewhat reduced" standard to procedural holdings still felt the need to set forth special factors justifying the overruling. United States v. Gaudin, 515 U.S. 506, 521 (1995), concluded that "the decision in question had been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court"; and Payne v.Tennessee, 501 U.S. 808, 828-830 (1991), noted that the overruled cases had been "decided by the narrowest of margins, over spirited dissents challenging [their] basic underpinnings," had been "questioned by Members of the Court in later decisions," and had "defied consistent application by the lower courts." The Court's next excuse is that House was decided without full briefing or argument. The sole precedent it cites for the proposition that this makes a difference is Gray v. Mississippi, 481 U.S. 648, 651, n. 1 (1987). Gray, however, did not deny stare decisis effect to an opinion rendered without full briefing and argument—it accorded stare decisis effect. Id., at 666-667. What the Court relies upon is the mere dictum, rendered in the course of this opinion (and dictum in a footnote, at that), that "summary action here does not have the *260 same precedential effect as does a case decided upon full briefing and argument." Id., at 651, n. 1. But the sole authority cited for that dictum was Edelman v. Jordan, 415 U.S. 651 (1974), which declined to give stare decisis effect, not to opinions that had been issued without briefing and argument, but to judgments that had been issued without opinion —"summary affirmances" that did not "contain any substantive discussion" of the point at issue or any other point, id., at 670-671. Such judgments, affirming without comment the disposition appealed from, were common in the days when this Court had an extensive mandatory jurisdiction; they carried littlemore weight than denials of certiorari. House, by contrast, was a six-page opinion with substantive discussion on the point at issue here. It reasoned: (1) "Our authority . . . extends only to cases `in a circuit court of appeals . . . .' " (2) "Here the case was never `in' the court of appeals," because of (3) "want of a certificate of probable cause." 324 U.S., at 44.[2] And it cited as authority Ferguson v. District of Columbia, 270 U.S. 633 (1926). The new rule that the Court today announces—that our opinions rendered without full briefing and argument (hitherto thought to be the strongest indication of certainty in the outcome) have a diminished stare decisis effect—may well turn out to be the principal point for which the present opinion will be remembered. It can be expected to affect the treatment of many significant per curiam opinions by the lower courts, and the willingness of Justices to undertake summary disposition in the future. *261 Of course even if one accepts that the two factors the Court alludes to (procedural ruling plus absence of full briefing or argument) reduce House `s stare decisis effect, one must still acknowledge that its stare decisis effect is increased by the fact that it was a statutory holding. The Court does not contend that stare decisis is utterly inapplicable, and so it must come up with some reason for ignoring it. Its reason is that we have "disregarded" House in practice. Ante, at 252. The opinions it cites for this proposition, however, not only fail to mention House; they fail to mention the jurisdictional issue to which House pertains. And "we have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect. " Lewis v. Casey, 518 U.S. 343, 352, n. 2 (1996) (emphasis added). Surely it constitutes "precedential effect" to reduce the stare decisis effect of one of the Court's holdings. It is significant, moreover, that when Members of the Court have discussed House or the jurisdictional effect of a COA denial, they have agreed that jurisdiction is not available under § 1254. See Davis v. Jacobs, 454 U.S. 911, 912 (1981) (Stevens, J., respecting denial of certiorari); id., at 916-917 (Rehnquist, J., joined by Burger, C. J., and Powell, J., dissenting); Jeffries v. Barksdale, 453 U.S. 914, 915-916 (1981) (Rehnquist, J., joined by Burger, C. J., and Powell, J., dissenting). The Court's new approach to unaddressed jurisdictional defects is perhaps the second point for which the present opinion will be remembered. While there is scant reason for denying stare decisis effect to House, there is special reason for according it: the reliance of Congress upon an unrepudiated decision central to the procedural scheme it was creating. Section 102 of AEDPA continues a long tradition of provisions enacted by Congress that limit appellate review of petitions. In 1908, Congress required a certificate of probable cause in habeas corpus cases involving state prisoners before an appeal would lie to *262 this Court, see Act of Mar. 10, 1908, ch. 76, 35 Stat. 40. In 1925, this requirement was extended to intermediate appellate proceedings, see Act of Feb. 13, 1925, ch. 229, §§ 6(d), 13, 43 Stat. 940, 942. Before 1925, this Court readily concluded it had no jurisdiction over appeals brought before it in the absence of a certificate, see, e. g., Bilik v. Strassheim, 212 U.S. 551 (1908); Ex parte Patrick, 212 U.S. 555 (1908), and House interpreted the 1925 amendment to produce the same effect in the courts of appeals and, consequently, in this Court under the predecessor to § 1254(1). Quite obviously, with House on the books—neither overruled nor even cited in the later opinions that the Court claims "disregarded" it— Congress presumably anticipated that § 102 of AEDPA would be interpreted in the same manner.[3] In yet another striking departure from our ordinary practice, the Court qualifies the rule that statutes are deemed to adopt the extant holdings of this Court, see Keene Corp. v. United States, 508 U.S. 200, 212 (1993): They will not be deemed to adopt them, the Court says, when legal commentators "question *263 the vitality" of the holdings. Ante, at 252. The confusion that will be introduced by this new approach is obvious. At bottom, the only justification for the Court's holding— and the only one that prompts the concurrence to overrule House —is convenience: it "permits us to carry out our normal function" of appellate review. Ante, at 251. Our "normal" function of appellate review, however, is no more and no less than what Congress says it is. U. S. Const., Art. III, § 2. The Court's defiance of the scheme created by Congress in evident reliance on our precedent is a display not of "common sense," ante, at 250, but of judicial willfulness. And a doctrine of stare decisis that is suspended when five Justices find it inconvenient (or indeed, as the concurrence suggests, even four Justices in search of a fifth) is no doctrine at all, but simply an excuse for adhering to cases we like and abandoning those we do not. II Since I find no jurisdiction under § 1254(1), I must address the Government's further argument that we can issue a common-law writ of certiorari under the All Writs Act, 28 U.S. C. § 1651. The All Writs Act provides that "[t]he Supreme Court . . . may issue all writs necessary or appropriate in aid of [its] jurisdictio[n] and agreeable to the usages and principles of law." As expressly noted in this Court's Rule 20.1, issuance of a writ under § 1651 "is not a matter of right, but of discretion sparingly exercised," and "[t]o justify the granting of any such writ, the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court." Petitioner (who filed a petition for a writ of certiorari under § 1254(1), not under the All Writs Act, Pet. for Cert. 1) has failed to establish that he meets these requirements. To begin with, he has not shown that adequate relief is unobtainable in any form or from any other court. AEDPA differs *264 from the gatekeeping statute at issue in House in a crucial respect: when House was decided, claimants could seek certificates of probable cause only from "the United States court by which the final decision was rendered or a judge of the circuit court of appeals," 28 U.S. C. § 466 (1940 ed.), whereas § 102 of AEDPA permits claimants to seek COA's from a "circuit justice or judge." Because petitioner may obtain the relief he seeks from a circuit justice, relief under the All Writs Act is not "necessary." Relief under the Act is also not "appropriate." The only circumstance alleged by petitioner to justify relief is that the Eighth Circuit erroneously concluded that he failed to present a substantial constitutional question. There is nothing "exceptional" about this claim; it is in fact the same claim available to every petitioner when a COA is denied, and entertaining it would render application for this "extraordinary" writ utterly routine. Issuance of the writ is not "appropriate" for another reason as well: It would frustrate the purpose of AEDPA, which is to prevent review unless a COA is granted. "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate." Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985).[4] * * * The purpose of AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the shameful overloading of *265 our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisprudence. And the purpose of the specific provision of AEDPA at issue here is also not obscure: It was designed, in intelligent reliance upon a holding of this Court, to end § 2255 litigation in the district court unless a court of appeals judge or the circuit justice finds reasonable basis to appeal. By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress's enactment, the Court adds new, Byzantine detail to a habeas corpus scheme Congress meant to streamline and simplify. I respectfully dissent.

Today's opinion permits review where Congress, with unmistakable clarity, has denied it. To reach this result, the Court ignores the obvious intent of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104— 132, distorts the meaning of our own jurisdictional statute, 28 U.S. C. 1254(1), and overrules a 53year-old precedent, I respectfully dissent. I This Court's jurisdiction under 28 U.S. C. 1254(1) is limited to "[c]ases in the courts of appeals." Section 102 of AEDPA provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals fromthe final order in a habeas corpus proceeding under section 2255," that is, a district court habeas proceeding challenging federal custody. Petitioner, who is challenging federal custody under 28 U.S. C. 2255, did not obtain a certificate of appealability (COA). By the plain language of AEDPA, his appeal "from" the district court's "final order" "may not be taken to the court of appeals." Because it could not be taken to the Court of Appeals, it quite obviously was never in the Court of Appeals; and because it was never in the Court of Appeals, we lack jurisdiction under 1254(1) to entertain it. We have already squarely and explicitly endorsed this straightforward interpretation. In involving the predecessors to 1254(1) and *255 2253(c)(1), the statutorily required certificate was called a "certificate of probable cause" rather than a certificate of appealability, but the effect of failure to obtain it was precisely the same: The case could not proceed to the court of appeals. On an attempt to obtain review of denial of the certificate in this Court, we held that since petitioner's "case was never `in' the court of appeals, for want of a certificate," we lacked jurisdiction under 1254(1). The Court concedes that House is squarely on point but opts to overrule it because its "conclusion was erroneous," ante, at 251. The Court does not dispute that petitioner's 2255 action was never in the Court of Appeals; its overruling of House is instead based on the proposition that petitioner's request for a COA is, in and of itself, a "case" within the meaning of 1254(1), see ante, at 241-242, 246-249, and that that case was "in" the Court of Appeals and hence can be reviewed here, ante, at 241-246. Most of the Court's analysis is expended in the effort to establish that petitioner made his request for a COA to the Court of Appeals as such, rather than to the circuit judges in their individual capacity, Even that effort is unsuccessful, since it comes up against the pellucid language of AEDPA to the contrary. Section 102 does not permit application for a COA to a court of appeals; it states that the application must be made to a "circuit justice or judge." That this means precisely what it says is underscored by 103 of AEDPA, which amends Rule 22 of the Federal Rules of Appellate Procedure: "If [a COA] request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate." As though drafted in anticipatory refutation of the Court's countertextual holding today, the Advisory Committee's Notes on Rule 22 explicitly state that "28 U.S. C. 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U.S. C. App., p. 609. *256 Proclaiming the request for a COA to be "in" the Court of Appeals is the most obvious of the Court's statutory distortions, but not the one with the most serious collateral consequences. The latter award goes to the Court's virtually unanalyzed pronouncement (also essential to its holding) that the request for a COA was itself a "case" within the meaning of 1254(1). The notion that a request pertaining to a case constitutes its own "case" for purposes of 1254 is a jawdropper. To support that remarkable assertion, the Court relies upon circumstantial evidence—that the "application moved through the Eighth Circuit in the same manner as cases in general do." Ante, at 242. Does this mean that a request for a COA would not be a "case" in those Circuits that treated it differently—that permitted it to be disposed of by a single judge as Rule 22 specifically allows? Does it mean that a motion for recusal, or a request for televised coverage, or a motion to file under seal would be a "case" if the court of appeals chose to treat it in the manner the Eighth Circuit treated the request for a COA here? Surely not. An application for a COA, standing alone, does not have the requisite qualities of a legal "case" under any known definition. It does not assert a grievance against anyone, does not seek remedy or redress for any legal injury, and does not even require a "party" on the other side. It is nothing more than a request for permission to seek review. Petitioner's grievance is with respondent for unlawful custody, and the remedy he seeks is release from that custody pursuant to 2255. The request for a COA is not some separate "case" that can subsist apart from that underlying suit; it is merely a procedural requirement that must be fulfilled before petitioner's 2255 action—his "case" or "cause"—can advance to the appellate court. The adversity which the Court acknowledges is needed for a "case" under 1254, see ante, at 241, is not satisfied by the dispute between petitioner and respondent as to whether the COA should be granted— *257 any more than a "case or controversy" for purposes of initial federal-court jurisdiction is created by a dispute over venue, between parties who agree on everything else.[1] As is true with most erroneous theories, a logical and consistent application of the Court's reasoning yields strange results. If dispute over the propriety of granting a COA creates a "case," the denial of a COA request that has been unopposed (or, better yet, has been supported by the Government) will be unreviewable, whereas denial of a request that is vigorously opposed will be reviewed—surely an upsidedown result. And the "case" concerning the COA will subsist even when the 2255 suit has been mooted by the petitioner's release from prison. These bizarre consequences follow inevitably from the Court's "separate case" theory, which has been fabricated in order to achieve a result that is fundamentally at odds with the purpose of the statute. For the Court insists upon assuming, contrary to the plain import of the statute, that Congress wanted petitioner's 2255 action to proceed "in the ordinary course of the judicial process" and to follow the "general rule" that permits an appeal from a final district court order, If this were Congress's wish, there would have been no need for 102 of AEDPA. The whole point of that provision is to diverge from the ordinary course of the judicial process and to keep petitioner's case against respondent out of the Court of Appeals unless petitioner obtains a COA. "The certificate is a screening device, helping to conserve judicial (and prosecutorial) resources." It is this unique screening function that distinguishes a COA from the jurisdictional issues discussed by the Court: Section 102 of AEDPA prevents petitioner's case from entering the Court of Appeals at all in the absence of a COA, whereas other jurisdictional determinations are made after a case is in the Court of Appeals (even if the case is later dismissed because of jurisdictional defects), ante, at 246— 249. See The Court's only response to these arguments is that they are foreclosed by our precedent, since we decided an analogous issue in Ex parte Quirin, Ante, at 246. (The Court displays no appreciation of the delicious irony involved in its insistence upon hewing to an allegedly analogous decision while overruling the case directly in point, House. ) Quirin held that a petition for habeas corpus constituted the institution of a suit, and that it was not necessary for the writ to issue for the matter to be considered a case or controversy. Quirin relied upon our decision in Ex parte Milligan, which reasoned that a petition for habeas corpus is a suit because the petitioner seeks "`that remedy which the law affords him' " to recover his liberty. ). Petitioner's request for 2255 relief is analogous to a petition for habeas corpus, but his request for a COA is of a wholly different nature. That is no "remedy" for any harm, but a threshold procedural requirement that petitioner must meet in order to carry his 2255 suit to the appellate stage. That is why the Court in House, decided less than three years after Quirin, did not treat the application for a certificate as a separate case but did recognize the petition for habeas corpus as a case even though it was decided without a hearing or a call for a I have described above why House was entirely correct, but a few words are in order concerning the inappropriateness *259 of overruling House, regardless of its virtue as an original matter. "[T]he burden borne by the party advocating abandonment of an established precedent is greater where the Court is asked to overrule a point of statutory construction." ; see also Illinois Brick ; The Court acknowledges this principle, but invokes cases of ours that say that stare decisis concerns are "`somewhat reduced' " in the case of a procedural rule. Ante, at 251. The basis for that principle, of course, is that procedural rules do not ordinarily engender detrimental reliance—and in this case, as I shall discuss, detrimental reliance by the Congress of the United States is self-evident. In any event, even those cases cited by the Court as applying the "somewhat reduced" standard to procedural holdings still felt the need to set forth special factors justifying the overruling. United concluded that "the decision in question had been proved manifestly erroneous, and its underpinnings eroded, by subsequent decisions of this Court"; and Payne v.Tennessee, noted that the overruled cases had been "decided by the narrowest of margins, over spirited dissents challenging [their] basic underpinnings," had been "questioned by Members of the Court in later decisions," and had "defied consistent application by the lower courts." The Court's next excuse is that House was decided without full briefing or argument. The sole precedent it cites for the proposition that this makes a difference is Gray, however, did not deny stare decisis effect to an opinion rendered without full briefing and argument—it accorded stare decisis effect. What the Court relies upon is the mere dictum, rendered in the course of this opinion (and dictum in a footnote, at that), that "summary action here does not have the *260 same precedential effect as does a case decided upon full briefing and argument." at But the sole authority cited for that dictum was which declined to give stare decisis effect, not to opinions that had been issued without briefing and argument, but to judgments that had been issued without opinion —"summary affirmances" that did not "contain any substantive discussion" of the point at issue or any other point, Such judgments, affirming without comment the disposition appealed from, were common in the days when this Court had an extensive mandatory jurisdiction; they carried littlemore weight than denials of certiorari. House, by contrast, was a six-page opinion with substantive discussion on the point at issue here. It reasoned: (1) "Our authority extends only to cases `in a circuit court of appeals' " (2) "Here the case was never `in' the court of appeals," because of (3) "want of a certificate of probable cause."[2] And it cited as authority The new rule that the Court today announces—that our opinions rendered without full briefing and argument (hitherto thought to be the strongest indication of certainty in the outcome) have a diminished stare decisis effect—may well turn out to be the principal point for which the present opinion will be remembered. It can be expected to affect the treatment of many significant per curiam opinions by the lower courts, and the willingness of Justices to undertake summary disposition in the future. *261 Of course even if one accepts that the two factors the Court alludes to (procedural ruling plus absence of full briefing or argument) reduce House `s stare decisis effect, one must still acknowledge that its stare decisis effect is increased by the fact that it was a statutory holding. The Court does not contend that stare decisis is utterly inapplicable, and so it must come up with some reason for ignoring it. Its reason is that we have "disregarded" House in practice. Ante, at 252. The opinions it cites for this proposition, however, not only fail to mention House; they fail to mention the jurisdictional issue to which House pertains. And "we have repeatedly held that the existence of unaddressed jurisdictional defects has no precedential effect. " Surely it constitutes "precedential effect" to reduce the stare decisis effect of one of the Court's holdings. It is significant, moreover, that when Members of the Court have discussed House or the jurisdictional effect of a COA denial, they have agreed that jurisdiction is not available under 1254. See ; ; The Court's new approach to unaddressed jurisdictional defects is perhaps the second point for which the present opinion will be remembered. While there is scant reason for denying stare decisis effect to House, there is special reason for according it: the reliance of Congress upon an unrepudiated decision central to the procedural scheme it was creating. Section 102 of AEDPA continues a long tradition of provisions enacted by Congress that limit appellate review of petitions. In 1908, Congress required a certificate of probable cause in habeas corpus cases involving state prisoners before an appeal would lie to *262 this Court, see Act of Mar. 10, 1908, ch. 76, In 1925, this requirement was extended to intermediate appellate proceedings, see Act of Feb. 13, 1925, ch. 229, 6(d), 13, 942. Before 1925, this Court readily concluded it had no jurisdiction over appeals brought before it in the absence of a certificate, see, e. g., ; Ex parte Patrick, and House interpreted the 1925 amendment to produce the same effect in the courts of appeals and, consequently, in this Court under the predecessor to 1254(1). Quite obviously, with House on the books—neither overruled nor even cited in the later opinions that the Court claims "disregarded" it— Congress presumably anticipated that 102 of AEDPA would be interpreted in the same manner.[3] In yet another striking departure from our ordinary practice, the Court qualifies the rule that statutes are deemed to adopt the extant holdings of this Court, see Keene : They will not be deemed to adopt them, the Court says, when legal commentators "question *263 the vitality" of the holdings. Ante, at 252. The confusion that will be introduced by this new approach is obvious. At bottom, the only justification for the Court's holding— and the only one that prompts the concurrence to overrule House —is convenience: it "permits us to carry out our normal function" of appellate review. Ante, at 251. Our "normal" function of appellate review, however, is no more and no less than what Congress says it is. U. S. Const., Art. III, 2. The Court's defiance of the scheme created by Congress in evident reliance on our precedent is a display not of "common sense," ante, at 250, but of judicial willfulness. And a doctrine of stare decisis that is suspended when five Justices find it inconvenient (or indeed, as the concurrence suggests, even four Justices in search of a fifth) is no doctrine at all, but simply an excuse for adhering to cases we like and abandoning those we do not. II Since I find no jurisdiction under 1254(1), I must address the Government's further argument that we can issue a common-law writ of certiorari under the All Writs Act, 28 U.S. C. 1651. The All Writs Act provides that "[t]he Supreme Court may issue all writs necessary or appropriate in aid of [its] jurisdictio[n] and agreeable to the usages and principles of law." As expressly noted in this Court's Rule 20.1, issuance of a writ under 1651 "is not a matter of right, but of discretion sparingly exercised," and "[t]o justify the granting of any such writ, the petition must show that the writ will be in aid of the Court's appellate jurisdiction, that exceptional circumstances warrant the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court." Petitioner (who filed a petition for a writ of certiorari under 1254(1), not under the All Writs Act, Pet. for Cert. 1) has failed to establish that he meets these requirements. To begin with, he has not shown that adequate relief is unobtainable in any form or from any other court. AEDPA differs *264 from the gatekeeping statute at issue in House in a crucial respect: when House was decided, claimants could seek certificates of probable cause only from "the United States court by which the final decision was rendered or a judge of the circuit court of appeals," 28 U.S. C. 466 (1940 ed.), whereas 102 of AEDPA permits claimants to seek COA's from a "circuit justice or judge." Because petitioner may obtain the relief he seeks from a circuit justice, relief under the All Writs Act is not "necessary." Relief under the Act is also not "appropriate." The only circumstance alleged by petitioner to justify relief is that the Eighth Circuit erroneously concluded that he failed to present a substantial constitutional question. There is nothing "exceptional" about this claim; it is in fact the same claim available to every petitioner when a COA is denied, and entertaining it would render application for this "extraordinary" writ utterly routine. Issuance of the writ is not "appropriate" for another reason as well: It would frustrate the purpose of AEDPA, which is to prevent review unless a COA is granted. "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling. Although that Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate." Pennsylvania Bureau of[4] * * * The purpose of AEDPA is not obscure. It was to eliminate the interminable delays in the execution of state and federal criminal sentences, and the shameful overloading of *265 our federal criminal justice system, produced by various aspects of this Court's habeas corpus jurisprudence. And the purpose of the specific provision of AEDPA at issue here is also not obscure: It was designed, in intelligent reliance upon a holding of this Court, to end 2255 litigation in the district court unless a court of appeals judge or the circuit justice finds reasonable basis to appeal. By giving literally unprecedented meaning to the words in two relevant statutes, and overruling the premise of Congress's enactment, the Court adds new, Byzantine detail to a habeas corpus scheme Congress meant to streamline and simplify. I respectfully dissent.

Justice Scalia

majority

Thompson v. North American Stainless, LP

2011-01-24

https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/

https://www.courtlistener.com/api/rest/v3/clusters/183480/

2010-014

Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S. C. §2000e et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 (ED Ky. 2006). After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. 567 F.3d 804 (2009). The court reasoned that because Thompson did not “engag[e] in any statutorily protected 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” Id., at 807–808. We granted certiorari. 561 U. S. ___ (2010). I Title VII provides that “[i]t shall be an unlawful em­ ployment practice for an employer to discriminate against any of his employees . . . because he has made a charge” under Title VII. 42 U.S. C. §2000e–3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought . . . by the person claiming to be aggrieved . . . by the al­ leged unlawful employment practice.” §2000e–5(b), (f)(1). It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action? II With regard to the first question, we have little diffi­ culty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In Burlington N. & S. F. R. Co. v. White, 548 U.S. 53 (2006), we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title Cite as: 562 U. S. ____ (2011) 3 Opinion of the Court VII’s antiretaliation provision with its substantive antidis­ crimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to . . . compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment oppor­ tunities or otherwise adversely affect his status as an employee.’ ” Id., at 62 (quoting 42 U.S. C. §2000e–2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are prohibited. 548 U.S., at 62 (quoting §2000e–3(a) (empha­ sis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ­ ment.” Id., at 64. Rather, Title VII’s antiretaliation pro­ vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted). We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Burlington. Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems con­ cerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the Burlington standard to third-party reprisals, NAS argues, 4 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court will place the employer at risk any time it fires any em­ ployee who happens to have a connection to a different employee who filed a charge with the EEOC. Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in Burlington because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text. We must also decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ ways meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in Burlington, 548 U.S., at 69, “the signifi­ cance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which re­ taliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” Id., at 68–69. III The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought . . . by the person claiming to be aggrieved.” 42 U.S. C. §2000e–5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement Cite as: 562 U. S. ____ (2011) 5 Opinion of the Court that the plaintiff have Article III standing. 567 F.3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the mini­ mal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue. We have suggested in dictum that the Title VII ag­ grievement requirement conferred a right to sue on all who satisfied Article III standing. Trafficante v. Metro politan Life Ins. Co., 409 U.S. 205 (1972), involved the “person aggrieved” provision of Title VIII (the Fair Hous­ ing Act) rather than Title VII. In deciding the case, how­ ever, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “con­ cluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” Id., at 209 (quoting Hackett v. McGuire Bros., Inc., 445 F.2d 442, 446 (1971)). We think that dictum regarding Title VII was too expan­ sive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coexten­ sive with Article III “insofar as tenants of the same hous ing unit that is charged with discrimination are con cerned.” 409 U.S., at 209 (emphasis added). Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III per­ mits, see Bennett v. Spear, 520 U.S. 154, 165–166 (1997); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 6 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court 109 (1979), though the holdings of those cases are com­ patible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum. We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd conse­ quences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and there­ fore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III. At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the em­ ployee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] ag­ grieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning. In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Cite as: 562 U. S. ____ (2011) 7 Opinion of the Court Act, 5 U.S. C. §551 et seq., authorizes suit to challenge a federal agency by any “person . . . adversely affected or aggrieved . . . within the meaning of a relevant statute.” §702. We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. National Wildlife Fed eration, 497 U.S. 871, 883 (1990). We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in­ consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400 (1987). We hold that the term “ag­ grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 495 (1998) (internal quotation marks omitted), while excluding plain­ tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII. Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation— collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue. 8 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court * * * The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. ____ (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–291 _________________ ERIC L. THOMPSON, PETITIONER v.

Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. The court reasoned that because Thompson did not “engag[e] in any statutorily protected 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” at 807–808. We granted certiorari. 561 U. S. (2010). I Title VII provides that “[i]t shall be an unlawful em­ ployment practice for an employer to discriminate against any of his employees because he has made a charge” under Title VII. 42 U.S. C. –3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought by the person claiming to be aggrieved by the al­ leged unlawful employment practice.” –5(b), (f)(1). It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action? II With regard to the first question, we have little diffi­ culty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In N. & S. F. R. we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title Cite as: 562 U. S. (2011) 3 Opinion of the Court VII’s antiretaliation provision with its substantive antidis­ crimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment oppor­ tunities or otherwise adversely affect his status as an employee.’ ” (quoting 42 U.S. C. –2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are 548 U.S., (quoting –3(a) (empha­ sis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ­ ment.” Rather, Title VII’s antiretaliation pro­ vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted). We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems con­ cerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the standard to third-party reprisals, NAS argues, 4 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court will place the employer at risk any time it fires any em­ ployee who happens to have a connection to a different employee who filed a charge with the EEOC. Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify departing from statutory text. We must also decline to identify a fixed class of relation­ ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al­ ways meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in “the signifi­ cance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which re­ taliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” –69. III The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought by the person claiming to be aggrieved.” 42 U.S. C. –5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement Cite as: 562 U. S. (2011) 5 Opinion of the Court that the plaintiff have Article III standing. 567 F.3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the mini­ mal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue. We have suggested in dictum that the Title VII ag­ grievement requirement conferred a right to sue on all who satisfied Article III standing. involved the “person aggrieved” provision of Title VIII (the Fair Hous­ ing Act) rather than Title VII. In deciding the case, how­ ever, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “con­ cluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” ). We think that dictum regarding Title VII was too expan­ sive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coexten­ sive with Article III “insofar as tenants of the same hous ing unit that is charged with discrimination are con cerned.” 409 U.S., Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III per­ mits, see ; Gladstone, 6 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court 109 (1979), though the holdings of those cases are com­ patible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum. We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd conse­ quences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and there­ fore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III. At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the em­ ployee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] ag­ grieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning. In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Cite as: 562 U. S. (2011) 7 Opinion of the Court Act, 5 U.S. C. et seq., authorizes suit to challenge a federal agency by any “person adversely affected or aggrieved within the meaning of a relevant statute.” We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in­ consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400 (1987). We hold that the term “ag­ grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., (internal quotation marks omitted), while excluding plain­ tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII. Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation— collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue. 8 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court * * * The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–291 ERIC L. THOMPSON, PETITIONER v.

Justice Ginsburg

concurring

Thompson v. North American Stainless, LP

2011-01-24

https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/

https://www.courtlistener.com/api/rest/v3/clusters/183480/

2010-014

I join the Court’s opinion, and add a fortifying observa tion: Today’s decision accords with the longstanding views of the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII. In its Compliance Manual, the EEOC counsels that Title VII “prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights. ” Brief for United States as Amicus Curiae 12–13 (quoting EEOC Compli ance Manual §8–II(C)(3) (1998)). Such retaliation “can be challenged,” the Manual affirms, “by both the individual who engaged in protected activity and the relative, where both are employees.” Id., at 25–26 (quoting Compliance Manual §8–II(B)(3)(c)). The EEOC’s statements in the Manual merit deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). See Federal Express Corp. v. Holowecki, 552 U.S. 389, 399–400 (2008). The EEOC’s interpretation of Title VII, I further note, is consistent with interpretations of analogous statutes by other federal agencies. See, e.g., NLRB v. Advertisers Mfg. Co., 823 F. 2d 1086, 1088–1089 (CA7 1987) (adopting NLRB’s position that retaliation against a relative violates the National 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP GINSBURG, J., concurring Labor Relations Act); Tasty Baking Co. v. NLRB, 254 F.3d 114, 127–128 (CADC 2001) (same), cited in Brief for United States as Amicus Curiae 11

I join the Court’s opinion, and add a fortifying observa tion: Today’s decision accords with the longstanding views of the Equal Employment Opportunity Commission (EEOC), the federal agency that administers Title VII. In its Compliance Manual, the EEOC counsels that Title VII “prohibit[s] retaliation against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage or prevent the person from pursuing those rights. ” Brief for United States as Amicus Curiae 12–13 (quoting EEOC Compli ance Manual (1998)). Such retaliation “can be challenged,” the Manual affirms, “by both the individual who engaged in protected activity and the relative, where both are employees.” at 25–26 See Federal Express Corp. v. Holowecki, The EEOC’s interpretation of Title VII, I further note, is consistent with interpretations of analogous statutes by other federal agencies. See, e.g., NLRB v. Advertisers Mfg. Co., 823 F. 2d 1086, 1088–1089 (CA7 1987) (adopting NLRB’s position that retaliation against a relative violates the National 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP GINSBURG, J., concurring Labor Relations Act); Tasty Baking Co. v. NLRB, 254 F.3d 114, 127–128 (CADC 2001) (same), cited in Brief for United States as Amicus Curiae 11

Justice Kennedy

majority

Brown v. Plata

2011-05-23

https://www.courtlistener.com/opinion/2959734/brown-v-plata/

https://www.courtlistener.com/api/rest/v3/clusters/2959734/

2010-046

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef fective absent a reduction in the prison system popula tion. The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend 2 BROWN v. PLATA Opinion of the Court ment is a power reserved to a three-judge district court, not a single-judge district court. 18 U.S. C. §3626(a). In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interre lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State also objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). 18 U.S. C. §3626; see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre tion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis taken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large num bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern. At the time of trial, California’s correctional facilities held some 156,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison popu Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis criminate manner or in these substantial numbers if sat isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece dented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional re quirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provi sion of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” 18 U.S. C. §3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners 4 BROWN v. PLATA Opinion of the Court through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the three judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed. I A The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correc tional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely over crowded, imperiling the safety of both correctional em ployees and inmates.’ ”1 Juris. Statement App., O. T. 2009, —————— 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tail spin,” id., at i. Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emer gency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” Id., at 61a. The consequences of overcrowding identified by the Governor include “ ‘in creased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Ibid. Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for pro longed periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert re ported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. —————— At trial, current and former California prison officials also testified to the degree of overcrowding. Jeanne Woodford, who recently adminis tered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” Ibid. And Robin Dezember, chief deputy secretary of Cor rectional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on every body in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con ditions in California’s prisons as “appalling,” “inhumane,” and “unac ceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate action.” Id., at 1312. 6 BROWN v. PLATA Opinion of the Court Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. Id., at 704. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treat ment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Id., at 1781. Prisoners suffering from physical illness also receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. Id., at 1024. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face signifi cant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest —————— 2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceed ing the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or inter vention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deterioration.” Id., at 12. No de tailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide prevention.” App. 868. Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receiv ership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, sur veyed death reviews for California prisoners. He con cluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “ex tremely high.” Id., at 429.4 Many more prisoners, suffer —————— 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Consti tution under Estelle v. Gamble, 429 U.S. 97, 104–105 (1976), if consid ered in isolation. Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 pre ventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews 18 (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. Ibid. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy . . . ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) 8 BROWN v. PLATA Opinion of the Court ing from severe but not life-threatening conditions, experi ence prolonged illness and unnecessary pain. B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over 15 years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to de liver necessary care to mentally ill inmates” in California prisons. Coleman v. Wilson, 912 F. Supp. 1282, 1316 (ED Cal.). The prisons were “seriously and chronically under staffed,” id., at 1306, and had “no effective method for ensuring . . . the competence of their staff,” id., at 1308. The prisons had failed to implement necessary suicide prevention procedures, “due in large measure to the severe understaffing.” Id., at 1315. Mentally ill inmates “lan guished for months, or even years, without access to nec essary care.” Id., at 1316. “They suffer from severe hallu cinations, [and] they decompensate into catatonic states.” Ibid. The court appointed a Special Master to oversee development and implementation of a remedial plan of action. In 2007, 12 years after his appointment, the Special —————— (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evi dence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48. Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California’s prisons was deteriorating. App. 489. The Special Master ascribed this change to increased over crowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the “growth of the resource [had] not matched the rise in demand.” Id., at 482. At the very time the need for space was rising, the need to house the expanding population had also caused a “reduction of programming space now occupied by inmate bunks.” Id., at 479. The State was “facing a four to five year gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients.” Id., at 481. “[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs.” Ibid. The Special Master concluded that many early “achievements have succumbed to the inexo rably rising tide of population, leaving behind growing frustration and despair.” Id., at 489. C The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that defi ciencies in prison medical care violated prisoners’ Eighth Amendment rights. The State stipulated to a remedial injunction. The State failed to comply with that injunc tion, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to 10 BROWN v. PLATA Opinion of the Court constitutional deficiencies in the [California prisons’] medical delivery system.” Ibid. And the court made findings regarding specific instances of neglect, including the following: “[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medica tions that actually served to exacerbate his renal fail ure. An optometrist noted the patient’s retinal bleed ing due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the pa tient’s renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the pa tient died three months later.” Id., at 928 (citations omitted). Prisons were unable to retain sufficient numbers of com petent medical staff, id., at 937, and would “hire any doctor who had ‘a license, a pulse and a pair of shoes,’ ” id., at 926. Medical facilities lacked “necessary medical equip ment” and did “not meet basic sanitation standards.” Id., at 944. “Exam tables and counter tops, where prisoners with . . . communicable diseases are treated, [were] not routinely disinfected.” Ibid. In 2008, three years after the District Court’s decision, the Receiver described continuing deficiencies in the health care provided by California prisons: “Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured. . . . Adequate housing for the dis abled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of dis repair. Basic medical equipment is often not available or used. Medications and other treatment options are Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court too often not available when needed. . . . Indeed, it is a misnomer to call the existing chaos a ‘medical deliv ery system’—it is more an act of desperation than a system.” Record in No. 3:01–CV–01351–TEH (ND Cal.), Doc. 1136, p. 5. A report by the Receiver detailed the impact of overcrowd ing on efforts to remedy the violation. The Receiver ex plained that “overcrowding, combined with staffing short ages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult.” App. 1031. “[O]vercrowding, and the resulting day to day operational chaos of the [prison sys tem], creates regular ‘crisis’ situations which . . . take time [and] energy . . . away from important remedial pro grams.” Id., at 1035. Overcrowding had increased the incidence of infectious disease, id., at 1037–1038, and had led to rising prison violence and greater reliance by custo dial staff on lockdowns, which “inhibit the delivery of medical care and increase the staffing necessary for such care.” Id., at 1037. “Every day,” the Receiver reported, “California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman . . . or Plata they will fail to comply with because of staff shortages and patient loads.” Id., at 1038. D The Coleman and Plata plaintiffs, believing that a rem edy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a three judge court empowered under the PLRA to order reduc tions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not chal lenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this 12 BROWN v. PLATA Opinion of the Court appeal. The three-judge court heard 14 days of testimony and issued a 184-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court. The State appealed to this Court pursuant to 28 U.S. C. §1253, and the Court postponed consideration of the ques tion of jurisdiction to the hearing on the merits. Schwar zenegger v. Plata, 560 U. S. ___ (2010). II As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dig nity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ” Atkins v. Virginia, 536 U.S. 304, 311 (2002) (quot ing Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)). To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court actually produce physical ‘torture or a lingering death.’ ” Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. 436, 447 (1890)); see generally A. Elsner, Gates of Injustice: The Crisis in America’s Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, includ ing adequate medical care, is incompatible with the con cept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9 (1978). Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and danger ous task of housing large numbers of convicted criminals. See Bell v. Wolfish, 441 U.S. 520, 547–548 (1979). Courts nevertheless must not shrink from their obligation to “en force the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration. Courts faced with the sensitive task of remedying un constitutional prison conditions must consider a range of available options, including appointment of special mas ters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitu tional mandate, courts may enter orders placing limits on a prison’s population. By its terms, the PLRA restricts the circumstances in which a court may enter an order “that has the purpose or effect of reducing or limiting the prison population.” 18 U.S. C. §3626(g)(4). The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design 14 BROWN v. PLATA Opinion of the Court capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of de sign capacity, it nonetheless has the “effect of reducing or limiting the prison population.” Ibid. Under the PLRA, only a three-judge court may enter an order limiting a prison population. §3626(a)(3)(B). Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). The party request ing a three-judge court must then submit “materials suffi cient to demonstrate that [these requirements] have been met.” §3626(a)(3)(C). If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. Ibid.; see also 28 U.S. C. §2284(b)(1) (stating that a three-judge court may not be convened if the district court “determines that three judges are not required”); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure §4235 (3d ed. 2007). The three-judge court must then find by clear and con vincing evidence that “crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” 18 U.S. C. §3626(a)(3)(E). As with any award of prospective relief under the PLRA, the relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” §3626(a)(1)(A). The three-judge court must therefore find that the relief is “narrowly drawn, extends no further than necessary . . . , and is the least intrusive means necessary to correct the violation of the Federal right.” Ibid. In making this de termination, the three-judge court must give “substantial weight to any adverse impact on public safety or the op eration of a criminal justice system caused by the relief.” Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court Ibid. Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case. This Court’s review of the three-judge court’s legal determinations is de novo, but factual findings are re viewed for clear error. See Anderson v. Bessemer City, 470 U.S. 564, 573–574 (1985). Deference to trial court fact finding reflects an understanding that “[t]he trial judge’s major role is the determination of fact, and with experi ence in fulfilling that role comes expertise.” Id., at 574. The three-judge court oversaw two weeks of trial and heard at considerable length from California prison offi cials, as well as experts in the field of correctional admini stration. The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had over seen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fash ion a remedy for this complex and intractable constitu tional violation. The three-judge court’s findings of fact may be reversed only if this Court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” Id., at 573 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). A The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata. 1 The parties dispute this Court’s jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the 16 BROWN v. PLATA Opinion of the Court District Courts. When exercising jurisdiction under 28 U.S. C. §1253, however, this Court “has not hesitated to exercise jurisdiction ‘to determine the authority of the court below,’ ” including whether the three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95, n. 12 (1974) (quoting Bailey v. Patterson, 369 U.S. 31, 34 (1962) (per curiam)); see also Gully v. Interstate Natural Gas Co., 292 U.S. 16, 18 (1934) (per curiam) (“The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action”). The merits of the decision to con vene the three-judge court, therefore, are properly before this Court. 2 Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied.” 18 U.S. C. §3626(a)(3)(A)(i). This provision refers to “an order.” It is satisfied if the court has entered one order, and this sin gle order has “failed to remedy” the constitutional viola tion. The defendant must also have had “a reasonable amount of time to comply with the previous court orders.” §3626(a)(3)(A)(ii). This provision refers to the court’s “orders.” It requires that the defendant have been given a reasonable time to comply with all of the court’s orders. Together, these requirements ensure that the “ ‘last resort remedy’ ” of a population limit is not imposed “ ‘as a first step.’ ” Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (CADC 1988). The first of these conditions, the previous order re quirement of §3626(a)(3)(A)(i), was satisfied in Coleman by appointment of a Special Master in 1995, and it was Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief “remains necessary to correct a current and ongoing violation of the Federal right,” §3626(b)(3), California has not attempted to obtain relief on this basis. The State claims instead that the second condition, the reasonable time requirement of §3626(a)(3)(A)(ii), was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for con struction of new facilities, hiring of new staff, and im plementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State’s ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms. Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new devel opments in the courts’ remedial efforts, the basic plan to solve the crisis through construction, hiring, and proce dural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The 18 BROWN v. PLATA Opinion of the Court Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduction. Instead, the Coleman Special Master explained that “many of the clinical advances . . . painfully accomplished over the past decade are slip-sliding away” as a result of overcrowding. App. 481–482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could “all but bankrupt” the State of California. App. 1053. Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reason able time to succeed, but reasonableness must be assessed in light of the entire history of the court’s remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a morato rium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts’ involve ment, serving neither the State nor the prisoners. Con gress did not require this unreasonable result when it used the term “reasonable.” The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Cite as: 563 U. S. ____ (2011) 19 Opinion of the Court Special Master in July 2009 describes ongoing violations, including an “absence of timely access to appropriate levels of care at every point in the system.” App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply “too many pris oners for the healthcare infrastructure.” Id., at 1655. The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay. B Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that “crowding is the primary cause of the violation of a Federal right.” 18 U.S. C. §3626(a)(3)(E)(i). 1 The three-judge court found the primary cause require ment satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic condi tions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court also found that “until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison population.” Juris. App. 141a. The parties dispute the standard of review applicable to this determination. With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferen tial. It is not this Court’s place to “duplicate the role” of the trial court. Anderson, 470 U.S., at 573. The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, “the mix weighs heavily on the 20 BROWN v. PLATA Opinion of the Court ‘fact’ side.” Lilly v. Virginia, 527 U.S. 116, 148 (1999) (Rehnquist, C. J., concurring in judgment). Because the “district court is ‘better positioned’ . . . to decide the issue,” our review of the three-judge court’s primary cause deter mination is deferential. Salve Regina College v. Russell, 499 U.S. 225, 233 (1991). The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the se verity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, “even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, . . . the prisons would still be unable to handle the level of need given the current overcrowding.” Record in No. 2:90–CV–00520–LKK–JFM (ED Cal.), Doc. 3231–13, p. 16 (hereinafter Doc. 3231–13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are “managing far larger caseloads than is appropriate or effective.” App. 596. A prison psychiatrist told Dr. Haney that “ ‘we are doing about 50% of what we should be doing.’ ” Ibid. In the context of physical care Dr. Shansky agreed that “demand for care, particularly for the high priority cases, continues to overwhelm the resources —————— 5 Dr. Craig Haney likewise testified that the State had “significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements,” that “key tasks were omitted when determining staffing workloads,” and that estimates were based on “key assumptions” that caused the State to underestimate demand for mental health care. App. 596–597. Cite as: 563 U. S. ____ (2011) 21 Opinion of the Court available.” Id., at 1408. Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the “newest and most modern pris ons” had been “designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons.” App. 1023 (emphasis deleted). Dr. Haney re ported that “[e]ach one of the facilities I toured was short of significant amounts of space needed to perform other wise critical tasks and responsibilities.” Id., at 597–598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bath rooms, shower rooms, and visiting centers. These make shift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff. This shortfall of resources relative to demand contrib utes to significant delays in treatment. Mentally ill pris oners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for “ ‘6 months or more.’ ” App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6 Delays are no less severe in the context of physical care. —————— 6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, “[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observation.” App. 736. The prisoner “hanged himself that night in his cell.” Ibid.; see also Juris. App. 99a. 22 BROWN v. PLATA Opinion of the Court Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231–13, at 18. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. Id., at 22–23. Urgent specialty referrals at one prison had been pending for six months to a year. Id., at 27. Crowding also creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as “ ‘breeding grounds for disease.’ ”7 Juris. App. 102a. Cramped conditions promote unrest and vio lence, making it difficult for prison officials to monitor and control the prison population. On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was as saulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may also impede efforts to improve delivery of —————— 7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners “bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.” Tr. 601, 604–605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to “more than half ” the 340 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. Id., at 720–721. Cite as: 563 U. S. ____ (2011) 23 Opinion of the Court care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup port a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. Id., at 769–777. More gen erally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “ ‘are simply too many issues that arise from such a large number of pris oners,’ ” and that, as a result, “ ‘management spends virtu ally all of its time fighting fires instead of engaging in thoughtful decision-making and planning’ ” of the sort needed to fashion an effective remedy for these constitu tional violations. Juris. App. 82a. Increased violence also requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. Id., at 116a. The average lock down lasted 12 days, and 20 lockdowns lasted 60 days or longer. Ibid. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications. The effects of overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. Id., at 85a. Crowding in these areas runs as high as 300% of design capacity. Id., at 86a. Living conditions are “ ‘toxic,’ ” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and pro vide even rudimentary care. Id., at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with 24 BROWN v. PLATA Opinion of the Court physicals or provid[e] any kind of chronic care follow-up.’ ” Id., at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general population. Some prisoners are held in the reception centers for their entire period of incarceration. Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the Califor nia prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” Id., at 83a. The former executive director of the Texas Department of Criminal Justice testified that “ ‘[e]verything revolves around overcrowding” and that “ ‘overcrowding is the primary cause of the medical and mental health care violations.’ ” Id., at 127a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ ‘overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.’ ” Ibid. And the current secretary of the Pennsylvania Depart ment of Corrections testified that “ ‘‘the biggest inhibiting factor right now in California being able to deliver appro priate mental health and medical care is the severe over crowding.’ ” Id., at 82a. 2 The State attempts to undermine the substantial evi dence presented at trial, and the three-judge court’s find ings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison condi tions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on Cite as: 563 U. S. ____ (2011) 25 Opinion of the Court recent observations of prison conditions; the court ad mitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, includ ing understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See supra, at 4–8, 19–24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. Id., at 585; see also id., at 563, 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231–13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); id., at 1245 (Austin); id., at 1312 (Lehman). The three-judge court’s opinion cited and relied on this evidence of current conditions. The court relied exten sively on the expert witness reports. See generally Juris. App. 85a–143a. The court cited the most current data available on suicides and preventable deaths in the Cali fornia prisons. Id., at 123a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, id., at 105a, 108a, and statistics on shortages of treatment beds for the same period, id., at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it also cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations. It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of “changed prison conditions” after that date would not be admitted. App. 26 BROWN v. PLATA Opinion of the Court 1190. The court also excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the exis tence of an ongoing constitutional violation. The court reasoned that its decision was limited to the issue of rem edy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered “[t]o the extent that it illuminates questions that are properly before the court.” App. 2339. Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litiga tion of the merits and the remedy. The State in fact represented to the three-judge court that it would be “ap propriate” to cut off discovery before trial because “like plaintiffs, we, too, are really gearing up and going into a pretrial mode.” Id., at 1683. And if the State truly be lieved there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a three judge court should not be convened because the District Courts’ prior orders had not “failed to remedy the dep rivation” of prisoners’ constitutional rights. 18 U.S. C. §3626(a)(3)(A)(i); see also supra, at 16–17. Once the three judge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit. The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the three judge court was based on current evidence pertaining to ongoing constitutional violations. 3 The three-judge court acknowledged that the violations Cite as: 563 U. S. ____ (2011) 27 Opinion of the Court were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the pri mary cause in the sense of being the foremost cause of the violation. This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. “Primary” is defined as “[f]irst or highest in rank, quality, or importance; princi pal.” American Heritage Dictionary 1393 (4th ed. 2000); see also Webster’s Third New International Dictionary 1800 (2002) (defining “primary” as “first in rank or impor tance”); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining “primary” as “[o]f the first or highest rank or importance; that claims the first consideration; principal, chief ”). Overcrowding need only be the foremost, chief, or principal cause of the violation. If Congress had intended —————— 8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were “simply wrong.” App. 1054–1055. The Receiver nevertheless made clear that “the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue.” Id., at 1053. The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation “largely unmitigated” even though deficiencies in care “are unquestionably exacerbated by overcrowding” and “defendants’ ability to provide required mental health services would be enhanced consid erably by a reduction in the overall census” of the prisons. App. 486– 487. 28 BROWN v. PLATA Opinion of the Court to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations. As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic admin istrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to “ ‘a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.’ ” App. 966–967 (quoting Fletcher, The Discre tionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see also Hutto, 437 U.S., at 688 (noting “the interdependence of the con ditions producing the violation,” including overcrowd ing). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solution. The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See 18 U.S. C. §3626. The House Report accompanying the PLRA explained: “While prison caps must be the remedy of last re sort, a court still retains the power to order this remedy despite its intrusive nature and harmful con sequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner’s Cite as: 563 U. S. ____ (2011) 29 Opinion of the Court federal rights.” H. R. Rep. No. 104–21, p. 25 (1995). Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, n. 12 (1986). A finding that overcrowding is the “primary cause” of a violation is therefore permissi ble, despite the fact that additional steps will be required to remedy the violation. C The three-judge court was also required to find by clear and convincing evidence that “no other relief will remedy the violation of the Federal right.” §3626(a)(3)(E)(ii). The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical per sonnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons’ design capacity. And the three-judge court’s order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court’s order on that basis. The evi dence at trial, however, supports the three-judge court’s conclusion that an order limited to other remedies would not provide effective relief. The State’s argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail 30 BROWN v. PLATA Opinion of the Court because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order “has the purpose or effect of reducing or limiting the prison population, or . . . directs the release from or nonadmission of prisoners to a prison.” §3626(g)(4). The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court’s order. They are not a less restrictive alternative to that order. Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Cole man District Court slowed the rate of transfer by requir ing inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condition. Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court’s decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California’s ongoing fiscal crisis, the three-judge court deemed “chimerical” any “remedy that requires significant additional spending by the state.” Juris. App. 151a. Events subsequent to the —————— 9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison population. In light of the State’s longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief. Cite as: 563 U. S. ____ (2011) 31 Opinion of the Court three-judge court’s decision have confirmed this conclu sion. In October 2010, the State notified the Coleman District Court that a substantial component of its con struction plans had been delayed indefinitely by the legis lature. And even if planned construction were to be completed, the Plata Receiver found that many so-called “expansion” plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 151a–152a. The former acting secretary of the California prisons explained that these plans would “ ‘compound the burdens imposed on prison administrators and line staff’’ ” by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. Id., at 152a. The three-judge court also rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the ade quate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See supra, at 20. The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court also concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients. The three-judge court also did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that over crowding posed a significant barrier to their efforts. The 32 BROWN v. PLATA Opinion of the Court Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would “all but bankrupt” the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous reme dial efforts had “succumbed to the inexorably rising tide of population.” App. 489. Both reports are persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State. Noth ing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary re sources would be made available. The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possi ble to hope that these violations would be cured without a reduction in overcrowding. A long history of failed reme dial orders, together with substantial evidence of over crowding’s deleterious effects on the provision of care, compels a different conclusion today. The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature re cently failed to allocate funds for planned new construc Cite as: 563 U. S. ____ (2011) 33 Opinion of the Court tion. Supra, at 30–31. Without a reduction in overcrowd ing, there will be no efficacious remedy for the unconsti tutional care of the sick and mentally ill in California’s prisons. D The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the violation. 18 U.S. C. §3626(a). When determining whether these requirements are met, courts must “give substantial weight to any ad verse impact on public safety or the operation of a criminal justice system.” Ibid. 1 The three-judge court acknowledged that its order “is likely to affect inmates without medical conditions or serious mental illness.” Juris. App. 172a. This is because reducing California’s prison population will require reduc ing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will also have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. Ac cording to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary. The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailor ing requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends.’ ” Board of Trus 34 BROWN v. PLATA Opinion of the Court tees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation. This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitution. Lewis v. Casey, 518 U.S. 343, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs.” 18 U.S. C. §3626(a)(1)(A). This means only that the scope of the order must be determined with reference to the consti tutional violations established by the specific plaintiffs before the court. This case is unlike cases where courts have impermis sibly reached out to control the treatment of persons or institutions beyond the scope of the violation. See Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 420 (1977). Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with rou- tine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treat ment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class mem bers who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates Cite as: 563 U. S. ____ (2011) 35 Opinion of the Court the Eighth Amendment, but in no sense are they remote bystanders in California’s medical care system. They are that system’s next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, “release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates.” Consolidated Reply Brief for Appellants 34. The order of the three judge court gives the State substantial flexibility to determine who should be released. If the State truly be lieves that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institution. The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to sys temwide relief when it conceded the existence of a viola tion. Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing system wide deficiencies in medical and mental health care. California’s medical care program is run at a systemwide level, and resources are shared among the correctional facilities. Although the three-judge court’s order addresses the entire California prison system, it affords the State flexi bility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it 36 BROWN v. PLATA Opinion of the Court so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate over crowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative—a series of institution-specific population limits—would require federal judges to make these choices. Leaving this discre tion to state officials does not make the order overbroad. Nor is the order overbroad because it limits the State’s authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State’s authority in the realm of prison administration, it does so in a manner that leaves much to the State’s discre tion. The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons’ capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduc tion. The order’s limited scope is necessary to remedy a constitutional violation. As the State implements the order of the three-judge court, time and experience may reveal targeted and effec tive remedies that will end the constitutional violations even without a significant decrease in the general prison population. The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious consideration. See infra, at 45–48. At this time, the State has not proposed any realistic alternative to the order. The State’s desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. Cite as: 563 U. S. ____ (2011) 37 Opinion of the Court 2 In reaching its decision, the three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population “in a manner that preserves public safety and the operation of the criminal justice system.” Juris. App. 247a–248a. The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to cer tify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.” Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be ex pected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when neces sary. See supra, at 28–29. A court is required to consider the public safety consequences of its order and to struc ture, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional violation. This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when 38 BROWN v. PLATA Opinion of the Court those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administration. The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s pris ons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over crowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and mis conduct, . . . and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the Cali fornia prison system testified that she “ ‘absolutely be lieve[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 Id., at 129a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population —————— 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘crimino genic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” Id., at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Nation. App. 1246. And the three judge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a. Cite as: 563 U. S. ____ (2011) 39 Opinion of the Court may “actually improve on public safety because they ad dress the problems that brought people to jail.” Tr. 1552– 1553. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, includ ing certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleteri ous effect on crime.” Tr. 2008–2009. In light of this evi dence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” —————— 11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadel phia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” Id., at 212 (statement of David Richman). The Philadelphia decree was also different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 (ED Pa. 1991); see also Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses. 40 BROWN v. PLATA Opinion of the Court of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of re ducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condi tion of their parole, and it could reduce the prison popula tion by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by over crowding. See supra, at 23–24. The court’s order took account of public safety concerns by giving the State sub stantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison popula tion in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state —————— 12 Expanding such community-based measures may require an ex penditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison popula tion and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources. Cite as: 563 U. S. ____ (2011) 41 Opinion of the Court prison officials. The court was not required to second guess the exercise of that discretion. Courts should pre sume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy deci sions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison popula tion. See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their condi tions of parole ‘serve any custody term in county jail.’ ” Ibid. These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety. III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a de gree of judgment. The inquiry involves uncertain predic tions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu lation levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” Hutto, 437 U.S., at 687, n. 9 (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977), in turn quoting Swann v. 42 BROWN v. PLATA Opinion of the Court Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971)). Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. 18 U.S. C. §3626(a). When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must also order the population reduc tion achieved in the shortest period of time reasonably consistent with public safety. A The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as 100% of design capacity. The chief deputy secretary of Correc tional Healthcare Services for the California prisons tes tified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. Id., at 179a–180a. A former head of cor rectional systems in Washington State, Maine, and Penn sylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” Id., at 180a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appro priate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” Ibid. And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Ibid. Cite as: 563 U. S. ____ (2011) 43 Opinion of the Court According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional violation. Of course, courts must not confuse professional standards with con stitutional requirements. Rhodes v. Chapman, 452 U.S. 337, 348, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is accept able in corrections philosophy. See supra, at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this profes sional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Profes sional standards may be “helpful and relevant with re spect to some questions.” Chapman, supra, at 348, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the “evi dence in support of a 130% limit is strong,” it found that 44 BROWN v. PLATA Opinion of the Court some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 183a, 184a. The three-judge court noted evidence support ing a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, id., at 181a–182a, although the relevance of that determina tion was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself con cedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court con cluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are also no scientific tools available to determine the precise population reduction necessary to remedy a consti tutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring require ment is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case. B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument Cite as: 563 U. S. ____ (2011) 45 Opinion of the Court before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 151% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to imple ment measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs pro posed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year dead line. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discretion. “The power of a court of equity to modify a decree of injunctive 46 BROWN v. PLATA Opinion of the Court relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. Id., at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three judge court must remain open to a showing or demonstra tion by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection. Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” 18 U.S. C. §3626(a)(1)(A), the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the Cite as: 563 U. S. ____ (2011) 47 Opinion of the Court required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduction. The three-judge court may also condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may also con sider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying consti tutional violations, that progress may demonstrate that further population reductions are not necessary or are less 48 BROWN v. PLATA Opinion of the Court urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex tend or modify this timeline. Experience with the three-judge court’s order may also lead the State to suggest other modifications. The three judge court should give any such requests serious consid eration. The three-judge court should also formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modification. They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed. It is so ordered. Cite as: 563 U. S. ____ (2011) 49 Opinion of the Court APPENDIXES A 18 U.S. C. §3626: “(a) REQUIREMENTS FOR RELIEF. “(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. . . . . . “(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. “(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request 50 BROWN v. PLATA Opinion of the Court for a three-judge court and materials sufficient to demon strate that the requirements of subparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. “(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evi dence that— “(i) crowding is the primary cause of the violation of a Federal right; and “(ii) no other relief will remedy the violation of the Fed eral right. “(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not ad mitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continua tion in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any pro ceeding relating to such relief. . . . . . (g) DEFINITIONS.—As used in this section . . . . . “(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the re lease from or nonadmission of prisoners to a prison . . . .” Cite as: 563 U. S. ____ (2011) 51 Opinion of the Court B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 52 BROWN v. PLATA Opinion of the Court C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people wait ing for mental health crisis bed) Cite as: 563 U. S. ____ (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–1233 _________________ EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order direct ing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disor ders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef fective absent a reduction in the prison system popula The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amend 2 BROWN v. PLATA Opinion of the Court ment is a power reserved to a three-judge district court, not a single-judge district court. U.S. C. In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interre lated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). U.S. C. see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discre tion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mis taken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large num bers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern. At the time of trial, California’s correctional facilities held some 6,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison popu Cite as: 563 U. S. (2011) 3 Opinion of the Court lation to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indis criminate manner or in these substantial numbers if sat isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprece dented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional re quirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provi sion of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” U.S. C. specifically the severe and unlawful mistreatment of prisoners 4 BROWN v. PLATA Opinion of the Court through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the three judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed. I A The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correc tional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely over crowded, imperiling the safety of both correctional em ployees and inmates.’ ”1 Juris. Statement App., O. T. 2009, —————— 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tail spin,” at i. Cite as: 563 U. S. (2011) 5 Opinion of the Court No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emer gency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” at 61a. The consequences of overcrowding identified by the Governor include “ ‘in creased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for pro longed periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert re ported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. —————— At trial, current and former California prison officials testified to the degree of overcrowding. Jeanne Woodford, who recently adminis tered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” And Robin Dezember, chief deputy secretary of Cor rectional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on every body in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con ditions in California’s prisons as “appalling,” “inhumane,” and “unac ceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate ac” 6 BROWN v. PLATA Opinion of the Court Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treat ment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Prisoners suffering from physical illness receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at % of design capacity and so have only half the clinical space needed to treat the current popula A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face signifi cant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest —————— 2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceed ing the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or inter vention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deteriora” No de tailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide preven” App. 868. Cite as: 563 U. S. (2011) 7 Opinion of the Court pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receiv ership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, sur veyed death reviews for California prisoners. He con cluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “ex tremely high.”4 Many more prisoners, suffer —————— 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Consti tution under if consid ered in isola Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 pre ventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) 8 BROWN v. PLATA Opinion of the Court ing from severe but not life-threatening conditions, experi ence prolonged illness and unnecessary pain. B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to de liver necessary care to mentally ill inmates” in California prisons. (ED Cal.). The prisons were “seriously and chronically under staffed,” and had “no effective method for ensuring the competence of their staff,” The prisons had failed to implement necessary suicide prevention procedures, “due in large measure to the severe understaffing.” Mentally ill inmates “lan guished for months, or even years, without access to nec essary care.” at “They suffer from severe hallu cinations, [and] they decompensate into catatonic states.” The court appointed a Special Master to oversee development and implementation of a remedial plan of ac In 2007, 12 years after his appointment, the Special —————— (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evi dence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48. Cite as: 563 U. S. (2011) 9 Opinion of the Court Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California’s prisons was deteriorating. App. 489. The Special Master ascribed this change to increased over crowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the “growth of the resource [had] not matched the rise in demand.” at 482. At the very time the need for space was rising, the need to house the expanding population had caused a “reduction of programming space now occupied by inmate bunks.” The State was “facing a four to five year gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients.” “[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs.” The Special Master concluded that many early “achievements have succumbed to the inexo rably rising tide of population, leaving behind growing frustration and despair.” C The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that defi ciencies in prison medical care violated prisoners’ Eighth Amendment rights. The State stipulated to a remedial injunc The State failed to comply with that injunc tion, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to 10 BROWN v. PLATA Opinion of the Court constitutional deficiencies in the [California prisons’] medical delivery system.” And the court made findings regarding specific instances of neglect, including the following: “[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medica tions that actually served to exacerbate his renal fail ure. An optometrist noted the patient’s retinal bleed ing due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the pa tient’s renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the pa tient died three months later.” (citations omitted). Prisons were unable to retain sufficient numbers of com petent medical staff, and would “hire any doctor who had ‘a license, a pulse and a pair of shoes,’ ” at 926. Medical facilities lacked “necessary medical equip ment” and did “not meet basic sanitation standards.” at 944. “Exam tables and counter tops, where prisoners with communicable diseases are treated, [were] not routinely disinfected.” In 2008, three years after the District Court’s decision, the Receiver described continuing deficiencies in the health care provided by California prisons: “Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured. Adequate housing for the dis abled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of dis repair. Basic medical equipment is often not available or used. Medications and other treatment options are Cite as: 563 U. S. (2011) 11 Opinion of the Court too often not available when needed. Indeed, it is a misnomer to call the existing chaos a ‘medical deliv ery system’—it is more an act of desperation than a system.” Record in No. 3:01–CV–01351–TEH (ND Cal.), Doc. 1136, p. 5. A report by the Receiver detailed the impact of overcrowd ing on efforts to remedy the viola The Receiver ex plained that “overcrowding, combined with staffing short ages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult.” App. 1. “[O]vercrowding, and the resulting day to day operational chaos of the [prison sys tem], creates regular ‘crisis’ situations which take time [and] energy away from important remedial pro grams.” Overcrowding had increased the incidence of infectious disease, –8, and had led to rising prison violence and greater reliance by custo dial staff on lockdowns, which “inhibit the delivery of medical care and increase the staffing necessary for such care.” “Every day,” the Receiver reported, “California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman or Plata they will fail to comply with because of staff shortages and patient loads.” D The Coleman and Plata plaintiffs, believing that a rem edy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a three judge court empowered under the PLRA to order reduc tions in the prison popula The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not chal lenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this 12 BROWN v. PLATA Opinion of the Court appeal. The three-judge court heard 14 days of testimony and issued a 4-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court. The State appealed to this Court pursuant to 28 U.S. C. and the Court postponed consideration of the ques tion of jurisdiction to the hearing on the merits. Schwar zenegger v. Plata, 560 U. S. (2010). II As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dig nity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ” (plurality opinion)). To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may Cite as: 563 U. S. (2011) 13 Opinion of the Court actually produce physical ‘torture or a lingering death.’ ” ); see generally A. Elsner, Gates of Injustice: The Crisis in America’s Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, includ ing adequate medical care, is incompatible with the con cept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment viola See 687, n. 9 (1978). Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and danger ous task of housing large numbers of convicted criminals. See Courts nevertheless must not shrink from their obligation to “en force the constitutional rights of all ‘persons,’ including prisoners.” (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administra Courts faced with the sensitive task of remedying un constitutional prison conditions must consider a range of available options, including appointment of special mas ters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitu tional mandate, courts may enter orders placing limits on a prison’s popula By its terms, the PLRA restricts the circumstances in which a court may enter an order “that has the purpose or effect of reducing or limiting the prison popula” U.S. C. The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design 14 BROWN v. PLATA Opinion of the Court capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of de sign capacity, it nonetheless has the “effect of reducing or limiting the prison popula” Under the PLRA, only a three-judge court may enter an order limiting a prison popula Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. The party request ing a three-judge court must then submit “materials suffi cient to demonstrate that [these requirements] have been met.” If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. ; see 28 U.S. C. (stating that a three-judge court may not be convened if the district court “determines that three judges are not required”); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure (3d ed. 2007). The three-judge court must then find by clear and con vincing evidence that “crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” U.S. C. As with any award of prospective relief under the PLRA, the relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” The three-judge court must therefore find that the relief is “narrowly drawn, extends no further than necessary and is the least intrusive means necessary to correct the violation of the Federal right.” In making this de termination, the three-judge court must give “substantial weight to any adverse impact on public safety or the op eration of a criminal justice system caused by the relief.” Cite as: 563 U. S. (2011) Opinion of the Court Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case. This Court’s review of the three-judge court’s legal determinations is de novo, but factual findings are re viewed for clear error. See v. Bessemer City, 470 U.S. 564, 573–574 (1985). Deference to trial court fact finding reflects an understanding that “[t]he trial judge’s major role is the determination of fact, and with experi ence in fulfilling that role comes expertise.” The three-judge court oversaw two weeks of trial and heard at considerable length from California prison offi cials, as well as experts in the field of correctional admini stra The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had over seen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fash ion a remedy for this complex and intractable constitu tional viola The three-judge court’s findings of fact may be reversed only if this Court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” ). A The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata. 1 The parties dispute this Court’s jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the 16 BROWN v. PLATA Opinion of the Court District Courts. When exercising jurisdiction under 28 U.S. C. however, this Court “has not hesitated to exercise jurisdiction ‘to determine the authority of the court below,’ ” including whether the three-judge court was properly constituted. ); see (19) (“The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action”). The merits of the decision to con vene the three-judge court, therefore, are properly before this Court. 2 Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied.” U.S. C. This provision refers to “an order.” It is satisfied if the court has entered one order, and this sin gle order has “failed to remedy” the constitutional viola The defendant must have had “a reasonable amount of time to comply with the previous court orders.” This provision refers to the court’s “orders.” It requires that the defendant have been given a reasonable time to comply with all of the court’s orders. Together, these requirements ensure that the “ ‘last resort remedy’ ” of a population limit is not imposed “ ‘as a first step.’ ” Inmates of (CADC 1988). The first of these conditions, the previous order re quirement of was satisfied in Coleman by appointment of a Special Master in 1995, and it was Cite as: 563 U. S. (2011) 17 Opinion of the Court satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief “remains necessary to correct a current and ongoing violation of the Federal right,” California has not attempted to obtain relief on this basis. The State claims instead that the second condition, the reasonable time requirement of was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for con struction of new facilities, hiring of new staff, and im plementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State’s ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms. Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new devel opments in the courts’ remedial efforts, the basic plan to solve the crisis through construction, hiring, and proce dural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The BROWN v. PLATA Opinion of the Court Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduc Instead, the Coleman Special Master explained that “many of the clinical advances painfully accomplished over the past decade are slip-sliding away” as a result of overcrowding. App. 481–482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could “all but bankrupt” the State of California. App. 1053. Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reason able time to succeed, but reasonableness must be assessed in light of the entire history of the court’s remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a morato rium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts’ involve ment, serving neither the State nor the prisoners. Con gress did not require this unreasonable result when it used the term “reasonable.” The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Cite as: 563 U. S. (2011) 19 Opinion of the Court Special Master in July 2009 describes ongoing violations, including an “absence of timely access to appropriate levels of care at every point in the system.” App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply “too many pris oners for the healthcare infrastructure.” The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay. B Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that “crowding is the primary cause of the violation of a Federal right.” U.S. C. 1 The three-judge court found the primary cause require ment satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic condi tions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court found that “until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison popula” Juris. App. 141a. The parties dispute the standard of review applicable to this determina With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferen tial. It is not this Court’s place to “duplicate the role” of the trial court. 470 U.S., The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, “the mix weighs heavily on the 20 BROWN v. PLATA Opinion of the Court ‘fact’ side.” (Rehnquist, C. J., concurring in judgment). Because the “district court is ‘better positioned’ to decide the issue,” our review of the three-judge court’s primary cause deter mination is deferential. Salve Regina The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the se verity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, “even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, the prisons would still be unable to handle the level of need given the current overcrowding.” Record in No. 2:90–CV–00520–LKK–JFM (ED Cal.), Doc. 3231–13, p. 16 (hereinafter Doc. 3231–13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are “managing far larger caseloads than is appropriate or effective.” App. 596. A prison psychiatrist told Dr. Haney that “ ‘we are doing about 50% of what we should be doing.’ ” In the context of physical care Dr. Shansky agreed that “demand for care, particularly for the high priority cases, continues to overwhelm the resources —————— 5 Dr. Craig Haney likewise testified that the State had “significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements,” that “key tasks were omitted when determining staffing workloads,” and that estimates were based on “key assumptions” that caused the State to underestimate demand for mental health care. App. 596–597. Cite as: 563 U. S. (2011) 21 Opinion of the Court available.” Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the “newest and most modern pris ons” had been “designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons.” App. 1023 (emphasis deleted). Dr. Haney re ported that “[e]ach one of the facilities I toured was short of significant amounts of space needed to perform other wise critical tasks and responsibilities.” at 597–598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bath rooms, shower rooms, and visiting centers. These make shift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff. This shortfall of resources relative to demand contrib utes to significant delays in treatment. Mentally ill pris oners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for “ ‘6 months or more.’ ” App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6 Delays are no less severe in the context of physical care. —————— 6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, “[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observa” App. 736. The prisoner “hanged himself that night in his cell.” ; see Juris. App. 99a. 22 BROWN v. PLATA Opinion of the Court Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231–13, at A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. at 22–23. Urgent specialty referrals at one prison had been pending for six months to a year. at 27. Crowding creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as “ ‘breeding grounds for disease.’ ”7 Juris. App. 102a. Cramped conditions promote unrest and vio lence, making it difficult for prison officials to monitor and control the prison popula On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was as saulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may impede efforts to improve delivery of —————— 7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners “bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.” Tr. 601, 604–605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to “more than half ” the 0 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. at 720–721. Cite as: 563 U. S. (2011) 23 Opinion of the Court care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could sup port a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. at 769–777. More gen erally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “ ‘are simply too many issues that arise from such a large number of pris oners,’ ” and that, as a result, “ ‘management spends virtu ally all of its time fighting fires instead of engaging in thoughtful decision-making and planning’ ” of the sort needed to fashion an effective remedy for these constitu tional violations. Juris. App. 82a. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. at 116a. The average lock down lasted 12 days, and 20 lockdowns lasted 60 days or longer. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications. The effects of overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. at 85a. Crowding in these areas runs as high as 300% of design capacity. at 86a. Living conditions are “ ‘toxic,’ ” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and pro vide even rudimentary care. at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with 24 BROWN v. PLATA Opinion of the Court physicals or provid[e] any kind of chronic care follow-up.’ ” at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general popula Some prisoners are held in the reception centers for their entire period of incarcera Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the Califor nia prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” at 83a. The former executive director of the Texas Department of Criminal Justice testified that “ ‘[e]verything revolves around overcrowding” and that “ ‘overcrowding is the primary cause of the medical and mental health care violations.’ ” 7a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ ‘overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.’ ” And the current secretary of the Pennsylvania Depart ment of Corrections testified that “ ‘‘the biggest inhibiting factor right now in California being able to deliver appro priate mental health and medical care is the severe over crowding.’ ” at 82a. 2 The State attempts to undermine the substantial evi dence presented at trial, and the three-judge court’s find ings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison condi tions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on Cite as: 563 U. S. (2011) 25 Opinion of the Court recent observations of prison conditions; the court ad mitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, includ ing understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See at 4–8, 19–24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. ; see 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231–13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); 45 (Austin); The three-judge court’s opinion cited and relied on this evidence of current conditions. The court relied exten sively on the expert witness reports. See generally Juris. App. 85a–143a. The court cited the most current data available on suicides and preventable deaths in the Cali fornia prisons. 3a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, at 105a, 108a, and statistics on shortages of treatment beds for the same period, at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations. It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of “changed prison conditions” after that date would not be admitted. App. 26 BROWN v. PLATA Opinion of the Court 1190. The court excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the exis tence of an ongoing constitutional viola The court reasoned that its decision was limited to the issue of rem edy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered “[t]o the extent that it illuminates questions that are properly before the court.” App. 9. Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litiga tion of the merits and the remedy. The State in fact represented to the three-judge court that it would be “ap propriate” to cut off discovery before trial because “like plaintiffs, we, too, are really gearing up and going into a pretrial mode.” And if the State truly be lieved there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a three judge court should not be convened because the District Courts’ prior orders had not “failed to remedy the dep rivation” of prisoners’ constitutional rights. U.S. C. see at 16–17. Once the three judge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit. The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the three judge court was based on current evidence pertaining to ongoing constitutional violations. 3 The three-judge court acknowledged that the violations Cite as: 563 U. S. (2011) 27 Opinion of the Court were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the pri mary cause in the sense of being the foremost cause of the viola This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. “Primary” is defined as “[f]irst or highest in rank, quality, or importance; princi pal.” American Heritage Dictionary 1393 (4th ed. 2000); see Webster’s Third New International Dictionary 00 (defining “primary” as “first in rank or impor tance”); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining “primary” as “[o]f the first or highest rank or importance; that claims the first consideration; principal, chief ”). Overcrowding need only be the foremost, chief, or principal cause of the viola If Congress had intended —————— 8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were “simply wrong.” App. 1054–1055. The Receiver nevertheless made clear that “the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue.” The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation “largely unmitigated” even though deficiencies in care “are unquestionably exacerbated by overcrowding” and “defendants’ ability to provide required mental health services would be enhanced consid erably by a reduction in the overall census” of the prisons. App. 486– 487. 28 BROWN v. PLATA Opinion of the Court to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations. As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic admin istrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to “ ‘a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.’ ” App. 966–967 (quoting Fletcher, The Discre tionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see (noting “the interdependence of the con ditions producing the violation,” including overcrowd ing). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solu The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See U.S. C. The House Report accompanying the PLRA explained: “While prison caps must be the remedy of last re sort, a court still retains the power to order this remedy despite its intrusive nature and harmful con sequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner’s Cite as: 563 U. S. (2011) 29 Opinion of the Court federal rights.” H. R. Rep. No. 104–21, p. 25 (1995). Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 681, n. 12 (1986). A finding that overcrowding is the “primary cause” of a violation is therefore permissi ble, despite the fact that additional steps will be required to remedy the viola C The three-judge court was required to find by clear and convincing evidence that “no other relief will remedy the violation of the Federal right.” The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical per sonnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons’ design capacity. And the three-judge court’s order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court’s order on that basis. The evi dence at trial, however, supports the three-judge court’s conclusion that an order limited to other remedies would not provide effective relief. The State’s argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail 30 BROWN v. PLATA Opinion of the Court because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order “has the purpose or effect of reducing or limiting the prison population, or directs the release from or nonadmission of prisoners to a prison.” The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court’s order. They are not a less restrictive alternative to that order. Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Cole man District Court slowed the rate of transfer by requir ing inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condi Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court’s decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California’s ongoing fiscal crisis, the three-judge court deemed “chimerical” any “remedy that requires significant additional spending by the state.” Juris. App. 1a. Events subsequent to the —————— 9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison popula In light of the State’s longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief. Cite as: 563 U. S. (2011) 31 Opinion of the Court three-judge court’s decision have confirmed this conclu sion. In October 2010, the State notified the Coleman District Court that a substantial component of its con struction plans had been delayed indefinitely by the legis lature. And even if planned construction were to be completed, the Plata Receiver found that many so-called “expansion” plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 1a–2a. The former acting secretary of the California prisons explained that these plans would “ ‘compound the burdens imposed on prison administrators and line staff’’ ” by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. at 2a. The three-judge court rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the ade quate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients. The three-judge court did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that over crowding posed a significant barrier to their efforts. The 32 BROWN v. PLATA Opinion of the Court Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would “all but bankrupt” the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous reme dial efforts had “succumbed to the inexorably rising tide of popula” App. 489. Both reports are persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State. Noth ing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary re sources would be made available. The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possi ble to hope that these violations would be cured without a reduction in overcrowding. A long history of failed reme dial orders, together with substantial evidence of over crowding’s deleterious effects on the provision of care, compels a different conclusion today. The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature re cently failed to allocate funds for planned new construc Cite as: 563 U. S. (2011) 33 Opinion of the Court at 30–31. Without a reduction in overcrowd ing, there will be no efficacious remedy for the unconsti tutional care of the sick and mentally ill in California’s prisons. D The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the viola U.S. C. When determining whether these requirements are met, courts must “give substantial weight to any ad verse impact on public safety or the operation of a criminal justice system.” 1 The three-judge court acknowledged that its order “is likely to affect inmates without medical conditions or serious mental illness.” Juris. App. 172a. This is because reducing California’s prison population will require reduc ing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. Ac cording to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary. The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailor ing requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends.’ ” Board of Trus BROWN v. PLATA Opinion of the Court tees of State Univ. of N. (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the viola This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitu Lewis v. Casey, 5 U.S. 3, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs.” U.S. C. This means only that the scope of the order must be determined with reference to the consti tutional violations established by the specific plaintiffs before the court. This case is unlike cases where courts have impermis sibly reached out to control the treatment of persons or institutions beyond the scope of the viola See Dayton Bd. of Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with rou- tine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treat ment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class mem bers who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates Cite as: 563 U. S. (2011) 35 Opinion of the Court the Eighth Amendment, but in no sense are they remote bystanders in California’s medical care system. They are that system’s next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, “release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates.” Consolidated Reply Brief for Appellants The order of the three judge court gives the State substantial flexibility to determine who should be released. If the State truly be lieves that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court. The order is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institu The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to sys temwide relief when it conceded the existence of a viola Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing system wide deficiencies in medical and mental health care. California’s medical care program is run at a systemwide level, and resources are shared among the correctional facilities. Although the three-judge court’s order addresses the entire California prison system, it affords the State flexi bility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it 36 BROWN v. PLATA Opinion of the Court so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate over crowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative—a series of institution-specific population limits—would require federal judges to make these choices. Leaving this discre tion to state officials does not make the order overbroad. Nor is the order overbroad because it limits the State’s authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State’s authority in the realm of prison administration, it does so in a manner that leaves much to the State’s discre The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons’ capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduc The order’s limited scope is necessary to remedy a constitutional viola As the State implements the order of the three-judge court, time and experience may reveal targeted and effec tive remedies that will end the constitutional violations even without a significant decrease in the general prison popula The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious considera See infra, at 45–48. At this time, the State has not proposed any realistic alternative to the order. The State’s desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. Cite as: 563 U. S. (2011) 37 Opinion of the Court 2 In reaching its decision, the three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population “in a manner that preserves public safety and the operation of the criminal justice system.” Juris. App. 247a–248a. The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to cer tify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.” Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be ex pected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when neces sary. See at 28–29. A court is required to consider the public safety consequences of its order and to struc ture, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional viola This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when 38 BROWN v. PLATA Opinion of the Court those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administra The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s pris ons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over crowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and mis conduct, and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the Cali fornia prison system testified that she “ ‘absolutely be lieve[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 9a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population —————— 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘crimino genic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Na App. 1246. And the three judge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a. Cite as: 563 U. S. (2011) 39 Opinion of the Court may “actually improve on public safety because they ad dress the problems that brought people to jail.” Tr. 52– 53. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, includ ing certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleteri ous effect on crime.” Tr. 2008–2009. In light of this evi dence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” —————— 11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadel phia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” at 212 (statement of David Richman). The Philadelphia decree was different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 ; see Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses. 40 BROWN v. PLATA Opinion of the Court of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of re ducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condi tion of their parole, and it could reduce the prison popula tion by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by over crowding. See at 23–24. The court’s order took account of public safety concerns by giving the State sub stantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison popula tion in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state —————— 12 Expanding such community-based measures may require an ex penditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison popula tion and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources. Cite as: 563 U. S. (2011) 41 Opinion of the Court prison officials. The court was not required to second guess the exercise of that discre Courts should pre sume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy deci sions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison popula See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their condi tions of parole ‘serve any custody term in county jail.’ ” These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety. III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a de gree of judgment. The inquiry involves uncertain predic tions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu lation levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” n. 9 in turn quoting Swann v. 42 ). Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. U.S. C. When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must order the population reduc tion achieved in the shortest period of time reasonably consistent with public safety. A The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as % of design capacity. The chief deputy secretary of Correc tional Healthcare Services for the California prisons tes tified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial % of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. at 179a–0a. A former head of cor rectional systems in Washington State, Maine, and Penn sylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” at 0a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appro priate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Cite as: 563 U. S. (2011) 43 Opinion of the Court According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional viola Of course, courts must not confuse professional standards with con stitutional requirements. Rhodes v. 452 U.S. 337, 8, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is accept able in corrections philosophy. See at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this profes sional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Profes sional standards may be “helpful and relevant with re spect to some questions.” at 8, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the “evi dence in support of a 130% limit is strong,” it found that 44 BROWN v. PLATA Opinion of the Court some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 3a, 4a. The three-judge court noted evidence support ing a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, at 1a–2a, although the relevance of that determina tion was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself con cedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court con cluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are no scientific tools available to determine the precise population reduction necessary to remedy a consti tutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring require ment is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case. B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument Cite as: 563 U. S. (2011) 45 Opinion of the Court before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 1% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to imple ment measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs pro posed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year dead line. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discre “The power of a court of equity to modify a decree of injunctive 46 BROWN v. PLATA Opinion of the Court relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three judge court must remain open to a showing or demonstra tion by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protec Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” U.S. C. the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the Cite as: 563 U. S. (2011) 47 Opinion of the Court required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduc The three-judge court may condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may con sider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying consti tutional violations, that progress may demonstrate that further population reductions are not necessary or are less 48 BROWN v. PLATA Opinion of the Court urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex tend or modify this timeline. Experience with the three-judge court’s order may lead the State to suggest other modifications. The three judge court should give any such requests serious consid era The three-judge court should formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modifica They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed. It is so ordered. Cite as: 563 U. S. (2011) 49 Opinion of the Court APPENDIXES A U.S. C. “(a) REQUIREMENTS FOR RELIEF. “(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. “(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. “(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request 50 BROWN v. PLATA Opinion of the Court for a three-judge court and materials sufficient to demon strate that the requirements of subparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. “(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evi dence that— “(i) crowding is the primary cause of the violation of a Federal right; and “(ii) no other relief will remedy the violation of the Fed eral right. “(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not ad mitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continua tion in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any pro ceeding relating to such relief. (g) DEFINITIONS.—As used in this section “(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the re lease from or nonadmission of prisoners to a prison” Cite as: 563 U. S. (2011) 51 Opinion of the Court B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 52 BROWN v. PLATA Opinion of the Court C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people wait ing for mental health crisis bed) Cite as: 563 U. S. (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

Justice Scalia

dissenting

Brown v. Plata

2011-05-23

https://www.courtlistener.com/opinion/2959734/brown-v-plata/

https://www.courtlistener.com/api/rest/v3/clusters/2959734/

2010-046

Today the Court affirms what is perhaps the most radi cal injunction issued by a court in our Nation’s history: an order requiring California to release the staggering num ber of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd. The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity. 2 BROWN v. PLATA SCALIA, J., dissenting I A The Prison Litigation Reform Act (PLRA) states that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, [and] exten[d] no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S. C. §3626(a)(1)(A). In deciding whether these multiple limitations have been complied with, it is necessary to identify with precision what is the “violation of the Federal right of a particular plaintiff or plaintiffs” that has been alleged. What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to “a particular [prisoner] or [prisoners],” thereby violating (ac cording to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it. The Court acknowledges that the plaintiffs “do not base their case on deficiencies in care provided on any one occasion”; rather, “[p]laintiffs rely on systemwide deficien cies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill pris oners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.” Ante, at 7, n. 3. But our judge empowering “evolving standards of decency” jurisprudence (with which, by the way, I heartily disagree, see, e.g., Cite as: 563 U. S. ____ (2011) 3 SCALIA, J., dissenting Roper v. Simmons, 543 U.S. 551, 615–616 (2005) (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools, prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care. The Coleman litigation involves “the class of seriously mentally ill persons in California prisons,” ante, at 8, and the Plata litigation involves “the class of state prisoners with serious medical conditions,” ante, at 9. The plaintiffs do not appear to claim—and it would absurd to suggest— that every single one of those prisoners has personally experienced “torture or a lingering death,” ante, at 13 (internal quotation marks omitted), as a consequence of that bad medical system. Indeed, it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated—which, as the Court recognizes, is why the plaintiffs do not premise their claim on “deficiencies in care provided on any one occasion.” Ante, at 7, n. 3. Rather, the plaintiffs’ claim is that they are all part of a medical system so defective that some number of prisoners will inevitably be injured by incompetent medical care, and that this number is sufficiently high so as to render the system, as a whole, unconstitutional. But what procedural principle justifies certifying a class of plaintiffs so they may assert a claim of systemic uncon stitutionality? I can think of two possibilities, both of which are untenable. The first is that although some or most plaintiffs in the class do not individually have viable Eighth Amendment claims, the class as a whole has collec 4 BROWN v. PLATA SCALIA, J., dissenting tively suffered an Eighth Amendment violation. That theory is contrary to the bedrock rule that the sole purpose of classwide adjudication is to aggregate claims that are individually viable. “A class action, no less than tradi tional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’ legal rights and duties intact and the rules of decision unchanged.” Shady Grove Or thopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. ___, ___ (2010) (plurality opinion) (slip op., at 14). The second possibility is that every member of the plain tiff class has suffered an Eighth Amendment violation merely by virtue of being a patient in a poorly-run prison system, and the purpose of the class is merely to aggregate all those individually viable claims. This theory has the virtue of being consistent with procedural principles, but at the cost of a gross substantive departure from our case law. Under this theory, each and every prisoner who happens to be a patient in a system that has systemic weaknesses—such as “hir[ing] any doctor who had a li cense, a pulse and a pair of shoes,” ante, at 10 (internal quotation marks omitted)—has suffered cruel or unusual punishment, even if that person cannot make an individu alized showing of mistreatment. Such a theory of the Eighth Amendment is preposterous. And we have said as much in the past: “If . . . a healthy inmate who had suf fered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medi cal care . . . simply on the ground that the prison medical facilities were inadequate, the essential distinction be tween judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.” Lewis v. Casey, 518 U.S. 343, 350 (1996). Whether procedurally wrong or substantively wrong, Cite as: 563 U. S. ____ (2011) 5 SCALIA, J., dissenting the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs’ case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was “narrowly drawn” and “extends no further than necessary” to correct “the violation of the Federal right of a particular plaintiff or plaintiffs.” If (as is the case) the only viable constitu tional claims consist of individual instances of mistreat ment, then a remedy reforming the system as a whole goes far beyond what the statute allows. It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the re lease order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym. B Even if I accepted the implausible premise that the plaintiffs have established a systemwide violation of the Eighth Amendment, I would dissent from the Court’s endorsement of a decrowding order. That order is an example of what has become known as a “structural in junction.” As I have previously explained, structural injunctions are radically different from the injunctions traditionally issued by courts of equity, and presumably part of “the judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’ H. 6 BROWN v. PLATA SCALIA, J., dissenting McClintock, Principles of Equity §15, pp. 32–33 (2d ed. 1948). Indeed, there was a ‘historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.’ Id., §61, at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. . . . Compliance with these ‘single act’ mandates could, in addition to being simple, be quick; and once it was achieved the contemnor’s relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant’s obligation to the court, and the court’s coercive power over the liti gant, ceased. . . . The court did not engage in any on going supervision of the litigant’s conduct, nor did its order continue to regulate its behavior.” Mine Work ers v. Bagwell, 512 U.S. 821, 841–842 (1994) (SCALIA, J., concurring). Structural injunctions depart from that historical prac tice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations. The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, supra, at 385–393 (1996) (THOMAS, J., concurring); Mis souri v. Jenkins, 515 U.S. 70, 124–133 (1995) (THOMAS, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most Cite as: 563 U. S. ____ (2011) 7 SCALIA, J., dissenting pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges tradition ally engage in involves the determination of past or pre sent facts based (except for a limited set of materials of which courts may take “judicial notice”) exclusively upon a closed trial record. That is one reason why a district judge’s factual findings are entitled to clear-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff’s grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empiri cal predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legis lators and executive officials, but inappropriate for the Third Branch. This feature of structural injunctions is superbly illus trated by the District Court’s proceeding concerning the decrowding order’s effect on public safety. The PLRA requires that, before granting “[p]rospective relief in [a] civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S. C. §3626(a)(1)(A). Here, the Dis trict Court discharged that requirement by making the “factual finding” that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence “clear” that prison overcrowd 8 BROWN v. PLATA SCALIA, J., dissenting ing would “perpetuate a criminogenic prison system that itself threatens public safety,” id., at 186a, and volun teered its opinion that “[t]he population could be reduced even further with the reform of California’s antiquated sentencing policies and other related changes to the laws.” Id., at 253a. It “reject[ed] the testimony that inmates released early from prison would commit additional new crimes,” id., at 200a, finding that “shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidi vism,” id., at 204a, and that “slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety.” Id., at 209a. It found that “the diversion of offenders to commu nity correctional programs has significant beneficial ef fects on public safety,” id., at 214a, and that “additional rehabilitative programming would result in a significant population reduction while improving public safety,” id., at 216a. The District Court cast these predictions (and the Court today accepts them) as “factual findings,” made in reliance on the procession of expert witnesses that testified at trial. Because these “findings” have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give “sub stantial weight to any adverse impact on public safety.” But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work Cite as: 563 U. S. ____ (2011) 9 SCALIA, J., dissenting and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system. It is important to recognize that the dressing-up of pol icy judgments as factual findings is not an error pecu- liar to this case. It is an unavoidable concomitant of insti tutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the an ticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our sys tem of government allocates to other government officials. But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 10 BROWN v. PLATA SCALIA, J., dissenting witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified. The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court’s opinion today. The Court notes that “the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts” and deems those reports “persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State.” Ante, at 31–32. The use of these reports is even less consonant with the traditional judicial role than the District Court’s reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judg ments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give sugges tions on how to improve the prison system, bears no re semblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to “conduct hearings and prepare pro posed findings of fact” and “assist in the development of remedial plans,” 18 U.S. C. §3626(f)(6). This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state. Cite as: 563 U. S. ____ (2011) 11 SCALIA, J., dissenting C My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previ ously recognized: “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and re- form. . . . [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. . . . Running a prison is an inordinately difficult under taking that requires expertise, planning, and the com mitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal sys tem is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Turner v. Safley, 482 U.S. 78, 84–85 (1987) (internal quotation marks omitted). These principles apply doubly to a prisoner-release order. As the author of today’s opinion explained earlier this Term, granting a writ of habeas corpus “ ‘disturbs the State’s significant interest in repose for concluded litiga tion, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’ ” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (KENNEDY, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual 12 BROWN v. PLATA SCALIA, J., dissenting California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. ___ (2011); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam); Swarthout v. Cooke, 562 U. S. ___ (2011) (per curiam); Harrington, supra. And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters. II The Court’s opinion includes a bizarre coda noting that “[t]he State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years.” Ante, at 46–47. The Dis trict Court, it says, “may grant such a request provided that the State satisfies necessary and appropriate precon ditions designed to ensure the measures are taken to implement the plan without undue delay”; and it gives vague suggestions of what these preconditions “may in clude,” such as “interim benchmarks.” Ante, at 47. It also invites the District Court to “consider whether it is appro priate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reof fend,” and informs the State that it “should devise systems to select those prisoners least likely to jeopardize public safety.” Ibid. (What a good idea!) The legal effect of this passage is unclear—I suspect intentionally so. If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provi sion authorizing District Courts to modify or terminate Cite as: 563 U. S. ____ (2011) 13 SCALIA, J., dissenting prison injunctions. See 18 U.S. C. §3626(b). I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable mur ders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of in tellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. ___, ___, ___ (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review—a point the Court appears to recognize. Ante, at 45. Appel late courts are not supposed to “affirm” injunctions while preemptively noting that the State “may” request, and the District Court “may” grant, a request to extend the State’s deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification “may” include. Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appel late review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of sug gestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is “affirming,” just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, 14 BROWN v. PLATA SCALIA, J., dissenting grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten. But perhaps I am being too unkind. The Court, or at least a majority of the Court’s majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State’s proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for govern ment work, which the Court today says this is. So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s respon sibility. After all, did we not want, and indeed even sug gest, something better? III In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunc tion. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his consti tutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that pris oner (and no other remedy) would enable him to obtain Cite as: 563 U. S. ____ (2011) 15 SCALIA, J., dissenting medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text that I discussed at the outset, 18 U.S. C. §3626(a)(1)(A). “[N]arrowly drawn” means that the relief applies only to the “particu lar [prisoner] or [prisoners]” whose constitutional rights are violated; “extends no further than necessary” means that prisoners whose rights are not violated will not obtain relief; and “least intrusive means necessary to correct the violation of the Federal right” means that no other relief is available.* I acknowledge that this reading of the PLRA would se verely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconsti tutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the tem perature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be pro vided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to “give substantial weight to —————— * Any doubt on this last score, at least as far as prisoner-release or ders are concerned, is eliminated by §3626(a)(3)(E) of the statute, which provides that to enter a prisoner-release order the court must find “by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 16 BROWN v. PLATA SCALIA, J., dissenting any adverse impact on public safety or the operation of a criminal justice system caused by the relief” and author izes them to appoint Special Masters, §3626 (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have “the purpose or effect of reducing or limiting the prisoner population,” §3626(g)(4). I do not believe that objection carries the day. In addi tion to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that “[n]othing in this section shall be construed to . . . repeal or detract from otherwise applicable limitations on the remedial powers of the courts.” §3626(a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability. * * * The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18 U.S. C. §3626(a)(1)(A). It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges. Cite as: 563 U. S. ____ (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–1233 _________________ EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

Today the Court affirms what is perhaps the most radi cal injunction issued by a court in our Nation’s history: an order requiring California to release the staggering num ber of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd. The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity. 2 BROWN v. PLATA SCALIA, J., dissenting I A The Prison Litigation Reform Act (PLRA) states that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, [and] exten[d] no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S. C. In deciding whether these multiple limitations have been complied with, it is necessary to identify with precision what is the “violation of the Federal right of a particular plaintiff or plaintiffs” that has been alleged. What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to “a particular [prisoner] or [prisoners],” thereby violating (ac cording to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it. The Court acknowledges that the plaintiffs “do not base their case on deficiencies in care provided on any one occasion”; rather, “[p]laintiffs rely on systemwide deficien cies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill pris oners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.” Ante, at 7, n. 3. But our judge empowering “evolving standards of decency” jurisprudence (with which, by the way, I heartily disagree, see, e.g., Cite as: 563 U. S. (2011) 3 SCALIA, J., dissenting (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools, prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care. The Coleman litigation involves “the class of seriously mentally ill persons in California prisons,” ante, at 8, and the Plata litigation involves “the class of state prisoners with serious medical conditions,” ante, at 9. The plaintiffs do not appear to claim—and it would absurd to suggest— that every single one of those prisoners has personally experienced “torture or a lingering death,” ante, at 13 (internal quotation marks omitted), as a consequence of that bad medical system. Indeed, it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated—which, as the Court recognizes, is why the plaintiffs do not premise their claim on “deficiencies in care provided on any one occasion.” Ante, at 7, n. 3. Rather, the plaintiffs’ claim is that they are all part of a medical system so defective that some number of prisoners will inevitably be injured by incompetent medical care, and that this number is sufficiently high so as to render the system, as a whole, unconstitutional. But what procedural principle justifies certifying a class of plaintiffs so they may assert a claim of systemic uncon stitutionality? I can think of two possibilities, both of which are untenable. The first is that although some or most plaintiffs in the class do not individually have viable Eighth Amendment claims, the class as a whole has collec 4 BROWN v. PLATA SCALIA, J., dissenting tively suffered an Eighth Amendment violation. That theory is contrary to the bedrock rule that the sole purpose of classwide adjudication is to aggregate claims that are individually viable. “A class action, no less than tradi tional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’ legal rights and duties intact and the rules of decision unchanged.” Shady Grove Or thopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. (2010) (plurality opinion) (slip op., at 14). The second possibility is that every member of the plain tiff class has suffered an Eighth Amendment violation merely by virtue of being a patient in a poorly-run prison system, and the purpose of the class is merely to aggregate all those individually viable claims. This theory has the virtue of being consistent with procedural principles, but at the cost of a gross substantive departure from our case law. Under this theory, each and every prisoner who happens to be a patient in a system that has systemic weaknesses—such as “hir[ing] any doctor who had a li cense, a pulse and a pair of shoes,” ante, at 10 (internal quotation marks omitted)—has suffered cruel or unusual punishment, even if that person cannot make an individu alized showing of mistreatment. Such a theory of the Eighth Amendment is preposterous. And we have said as much in the past: “If a healthy inmate who had suf fered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medi cal care simply on the ground that the prison medical facilities were inadequate, the essential distinction be tween judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.” Lewis v. Casey, 518 U.S. 343, 350 (1996). Whether procedurally wrong or substantively wrong, Cite as: 563 U. S. (2011) 5 SCALIA, J., dissenting the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs’ case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was “narrowly drawn” and “extends no further than necessary” to correct “the violation of the Federal right of a particular plaintiff or plaintiffs.” If (as is the case) the only viable constitu tional claims consist of individual instances of mistreat ment, then a remedy reforming the system as a whole goes far beyond what the statute allows. It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the re lease order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym. B Even if I accepted the implausible premise that the plaintiffs have established a systemwide violation of the Eighth Amendment, I would dissent from the Court’s endorsement of a decrowding order. That order is an example of what has become known as a “structural in junction.” As I have previously explained, structural injunctions are radically different from the injunctions traditionally issued by courts of equity, and presumably part of “the judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’ H. 6 BROWN v. PLATA SCALIA, J., dissenting McClintock, Principles of Equity pp. 32–33 (2d ed. 1948). Indeed, there was a ‘historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.’ at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. Compliance with these ‘single act’ mandates could, in addition to being simple, be quick; and once it was achieved the contemnor’s relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant’s obligation to the court, and the court’s coercive power over the liti gant, ceased. The court did not engage in any on going supervision of the litigant’s conduct, nor did its order continue to regulate its behavior.” Mine Work (SCALIA, J., concurring). Structural injunctions depart from that historical prac tice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations. The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, at 385–393 (1996) (THOMAS, J., concurring); Mis (THOMAS, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most Cite as: 563 U. S. (2011) 7 SCALIA, J., dissenting pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges tradition ally engage in involves the determination of past or pre sent facts based (except for a limited set of materials of which courts may take “judicial notice”) exclusively upon a closed trial record. That is one reason why a district judge’s factual findings are entitled to clear-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff’s grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empiri cal predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legis lators and executive officials, but inappropriate for the Third Branch. This feature of structural injunctions is superbly illus trated by the District Court’s proceeding concerning the decrowding order’s effect on public safety. The PLRA requires that, before granting “[p]rospective relief in [a] civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S. C. Here, the Dis trict Court discharged that requirement by making the “factual finding” that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence “clear” that prison overcrowd 8 BROWN v. PLATA SCALIA, J., dissenting ing would “perpetuate a criminogenic prison system that itself threatens public safety,” at 186a, and volun teered its opinion that “[t]he population could be reduced even further with the reform of California’s antiquated sentencing policies and other related changes to the laws.” at 253a. It “reject[ed] the testimony that inmates released early from prison would commit additional new crimes,” at 200a, finding that “shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidi vism,” at 204a, and that “slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety.” at 209a. It found that “the diversion of offenders to commu nity correctional programs has significant beneficial ef fects on public safety,” at 214a, and that “additional rehabilitative programming would result in a significant population reduction while improving public safety,” at 216a. The District Court cast these predictions (and the Court today accepts them) as “factual findings,” made in reliance on the procession of expert witnesses that testified at trial. Because these “findings” have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give “sub stantial weight to any adverse impact on public safety.” But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work Cite as: 563 U. S. (2011) 9 SCALIA, J., dissenting and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system. It is important to recognize that the dressing-up of pol icy judgments as factual findings is not an error pecu- liar to this case. It is an unavoidable concomitant of insti tutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the an ticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our sys tem of government allocates to other government officials. But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 10 BROWN v. PLATA SCALIA, J., dissenting witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified. The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court’s opinion today. The Court notes that “the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts” and deems those reports “persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State.” Ante, at 31–32. The use of these reports is even less consonant with the traditional judicial role than the District Court’s reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judg ments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give sugges tions on how to improve the prison system, bears no re semblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to “conduct hearings and prepare pro posed findings of fact” and “assist in the development of remedial plans,” 18 U.S. C. This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state. Cite as: 563 U. S. (2011) 11 SCALIA, J., dissenting C My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previ ously recognized: “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and re- form. [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult under taking that requires expertise, planning, and the com mitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal sys tem is involved, federal courts have additional reason to accord deference to the appropriate prison authorities.” 84–85 (1987) (internal quotation marks omitted). These principles apply doubly to a prisoner-release order. As the author of today’s opinion explained earlier this Term, granting a writ of habeas corpus “ ‘disturbs the State’s significant interest in repose for concluded litiga tion, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’ ” v. Richter, 562 U. S. (2011) (slip op., at 13) (KENNEDY, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual 12 BROWN v. PLATA SCALIA, J., dissenting California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. (2011); Felkner v. Jackson, 562 U. S. (2011) (per curiam); Swarthout v. U. S. (2011) (per curiam); And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters. II The Court’s opinion includes a bizarre coda noting that “[t]he State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years.” Ante, at 46–47. The Dis trict Court, it says, “may grant such a request provided that the State satisfies necessary and appropriate precon ditions designed to ensure the measures are taken to implement the plan without undue delay”; and it gives vague suggestions of what these preconditions “may in clude,” such as “interim benchmarks.” Ante, at 47. It also invites the District Court to “consider whether it is appro priate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reof fend,” and informs the State that it “should devise systems to select those prisoners least likely to jeopardize public safety.” The legal effect of this passage is unclear—I suspect intentionally so. If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provi sion authorizing District Courts to modify or terminate Cite as: 563 U. S. (2011) 13 SCALIA, J., dissenting prison injunctions. See 18 U.S. C. I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable mur ders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of in tellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review—a point the Court appears to recognize. Ante, at 45. Appel late courts are not supposed to “affirm” injunctions while preemptively noting that the State “may” request, and the District Court “may” grant, a request to extend the State’s deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification “may” include. Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appel late review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of sug gestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is “affirming,” just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, 14 BROWN v. PLATA SCALIA, J., dissenting grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten. But perhaps I am being too unkind. The Court, or at least a majority of the Court’s majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State’s proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for govern ment work, which the Court today says this is. So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s respon sibility. After all, did we not want, and indeed even sug gest, something better? III In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunc tion. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his consti tutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that pris oner (and no other remedy) would enable him to obtain Cite as: 563 U. S. (2011) 15 SCALIA, J., dissenting medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text that I discussed at the outset, 18 U.S. C. “[N]arrowly drawn” means that the relief applies only to the “particu lar [prisoner] or [prisoners]” whose constitutional rights are violated; “extends no further than necessary” means that prisoners whose rights are not violated will not obtain relief; and “least intrusive means necessary to correct the violation of the Federal right” means that no other relief is available.* I acknowledge that this reading of the PLRA would se verely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconsti tutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the tem perature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be pro vided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to “give substantial weight to —————— * Any doubt on this last score, at least as far as prisoner-release or ders are concerned, is eliminated by of the statute, which provides that to enter a prisoner-release order the court must find “by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 16 BROWN v. PLATA SCALIA, J., dissenting any adverse impact on public safety or the operation of a criminal justice system caused by the relief” and author izes them to appoint Special Masters, (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have “the purpose or effect of reducing or limiting the prisoner population,” (g)(4). I do not believe that objection carries the day. In addi tion to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that “[n]othing in this section shall be construed to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.” (a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability. * * * The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18 U.S. C. It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges. Cite as: 563 U. S. (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1233 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.

Justice Alito

second_dissenting

Brown v. Plata

2011-05-23

https://www.courtlistener.com/opinion/2959734/brown-v-plata/

https://www.courtlistener.com/api/rest/v3/clusters/2959734/

2010-046

The decree in this case is a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, was enacted to prevent. The Constitution does not give federal judges the au thority to run state penal systems. Decisions regarding state prisons have profound public safety and financial implications, and the States are generally free to make these decisions as they choose. See Turner v. Safley, 482 U.S. 78, 85 (1987). The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. In this case, a three-judge court exceeded its authority under the Constitution and the PLRA. The court ordered a radical reduction in the California prison population 2 BROWN v. PLATA ALITO, J., dissenting without finding that the current population level violates the Constitution. Two cases were before the three-judge court, and neither targeted the general problem of overcrowding. Indeed, the plaintiffs in one of those cases readily acknowledge that the current population level is not itself unconstitutional. Brief for Coleman Appellees 56. Both of the cases were brought not on behalf of all inmates subjected to over crowding, but rather in the interests of much more limited classes of prisoners, namely, those needing mental health treatment and those with other serious medical needs. But these cases were used as a springboard to implement a criminal justice program far different from that chosen by the state legislature. Instead of crafting a remedy to attack the specific constitutional violations that were found—which related solely to prisoners in the two plain tiff classes—the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety. The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions. The approach taken by the three-judge court flies in the face of the PLRA. Contrary to the PLRA, the court’s rem edy is not narrowly tailored to address proven and ongoing constitutional violations. And the three-judge court vio lated the PLRA’s critical command that any court con templating a prisoner release order must give “substantial weight to any adverse impact on public safety.” 18 U.S. C. §3626(a)(1)(A). The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. Juris. Statement App., O. T. 2009, No. 09–416, pp. 248a–249a (hereinafter Juris. App.). Common sense and experience counsel greater caution. Cite as: 563 U. S. ____ (2011) 3 ALITO, J., dissenting I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in hold ing that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety. I Both the PLRA and general principles concerning in junctive relief dictate that a prisoner release order cannot properly be issued unless the relief is necessary to remedy an ongoing violation. Under the PLRA, a prisoner release may be decreed only if crowding “is the primary cause” of an Eighth Amendment violation and only if no other re lief “will remedy” the violation. §3626(a)(3)(E) (emphasis added). This language makes it clear that proof of past violations alone is insufficient to justify a court-ordered prisoner release. Similarly, in cases not governed by the PLRA, we have held that an inmate seeking an injunction to prevent a violation of the Eighth Amendment must show that prison officials are “knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so . . . into the future.” Farmer v. Brennan, 511 U.S. 825, 846 (1994). The “deliberate indifference” needed to establish an Eighth Amendment violation must be examined “in light of the prison authorities’ current attitudes and conduct,” Helling v. McKinney, 509 U.S. 25, 36 (1993), which means “their attitudes and conduct at the time suit is brought and persisting thereafter,” Farmer, supra, at 845. For these reasons, the propriety of the relief ordered here cannot be assessed without ascertaining the nature and scope of any ongoing constitutional violations. Proof 4 BROWN v. PLATA ALITO, J., dissenting of past violations will not do; nor is it sufficient simply to establish that some violations continue. The scope of permissible relief depends on the scope of any continuing violations, and therefore it was essential for the three judge court to make a reliable determination of the extent of any violations as of the time its release order was is sued. Particularly in light of the radical nature of its chosen remedy, nothing less than an up-to-date assess ment was tolerable. The three-judge court, however, relied heavily on out dated information and findings and refused to permit California to introduce new evidence. Despite evidence of improvement,1 the three-judge court relied on old findings made by the single-judge courts, see Juris. App. 76a–77a, including a finding made 14 years earlier, see id., at 170a (citing Coleman v. Wilson, 912 F. Supp. 1282, 1316, 1319 (ED Cal. 1995)). The three-judge court highlighted death statistics from 2005, see Juris. App. 9a, while ignoring the “significant and continuous decline since 2006,” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 31 (Dec. 2009) (hereinafter 2008 Death Reviews). And the court dwelled on conditions at a facility that has since been replaced. See Juris. App. 19a–20a, 24a, 89a–90a, 94a, 107a, 111a. Prohibiting the State from introducing evidence about conditions as of the date when the prisoner release order was under consideration, id., at 76a–78a, and n. 42, the three-judge court explicitly stated that it would not “evalu ate the state’s continuing constitutional violations.” Id., at —————— 1 Before requesting the appointment of a three-judge court, the Dis trict Court in Coleman recognized “commendable progress” in the State’s effort to provide adequate mental health care, Juris. App. 294a, and the District Court in Plata acknowledged that “the Receiver has made much progress since his appointment,” id., at 280a. The report of the Special Master to which the Court refers, ante, at 18–19, identifies a “generally positive trend.” App. 803. Cite as: 563 U. S. ____ (2011) 5 ALITO, J., dissenting 77a. Instead, it based its remedy on constitutional defi ciencies that, in its own words, were found “years ago.” Ibid.2 The three-judge court justified its refusal to receive up to-date evidence on the ground that the State had not filed a motion to terminate prospective relief under a provision of the PLRA, §3626(b). See Juris. App. 77a. Today’s opinion for this Court endorses that reasoning, ante, at 26. But the State’s opportunity to file such a motion did not eliminate the three-judge court’s obligation to ensure that its relief was necessary to remedy ongoing violations.3 Moreover, the lower court’s reasoning did not properly take into account the potential significance of the evidence that the State sought to introduce. Even if that evidence did not show that all violations had ceased—the showing needed to obtain the termination of relief under §3626(b)—that evidence was highly relevant with respect to the nature and scope of permissible relief.4 —————— 2 For this reason, it is simply not the case that “evidence of current conditions . . . informed every aspect of the judgment of the three-judge court,” as the majority insists, ante, at 25. 3 Because the Ninth Circuit places the burden on the State to prove the absence of an ongoing violation when it moves to terminate pro spective relief, see Gilmore v. California, 220 F.3d 987, 1007 (CA9 2000), even if the State had unsuccessfully moved to terminate pro spective relief under 18 U.S. C. §3626(b), there would still have been no determination that plaintiffs had carried their burden under the PLRA to establish by clear and convincing evidence that a prisoner release order is necessary to correct an ongoing rights violation. 4 It is also no answer to say, as the Court now does, ante, at 26, that the State had the opportunity to resist the convening of the three-judge court on the ground that there were no unremedied constitutional violations as of that date. See §3626(a)(3)(A)(i). The District Courts granted plaintiffs’ motions to convene a three-judge court in 2007, three years before the remedial decree here was issued. Thus, the conditions in the prison system as of the date when the decree was issued were not necessarily the same as those that existed before the three-judge court proceedings began. Moreover, as noted above, even if all of the viola tions in the system had not been cured at the time of the remedial 6 BROWN v. PLATA ALITO, J., dissenting The majority approves the three-judge court’s refusal to receive fresh evidence based largely on the need for “[o]r derly trial management.” Ante, at 26. The majority rea sons that the three-judge court had closed the book on the question of constitutional violations and had turned to the question of remedy. Ibid. As noted, however, the ex- tent of any continuing constitutional violations was highly relevant to the question of remedy. The majority also countenances the three-judge court’s reliance on dated findings. The majority notes that the lower court considered recent reports by the Special Mas ter and Receiver, ante, at 18–19, but the majority provides no persuasive justification for the lower court’s refusal to receive hard, up-to-date evidence about any continuing violations. With the safety of the people of California in the balance, the record on this issue should not have been closed. The majority repeats the lower court’s error of reciting statistics that are clearly out of date. The Court notes the lower court’s finding that as of 2005 “an inmate in one of California’s prisons needlessly dies every six to seven days.” See ante, at 9. Yet by the date of the trial before the three-judge court, the death rate had been trending downward for 10 quarters, App. 2257, and the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent.5 Between 2001 and 2007, the —————— decree, an accurate assessment of conditions as of that date was essen tial in order to ensure that the relief did not sweep more broadly than necessary. 5 2008 Death Reviews 22. The majority elides the improvement by combining likely preventable deaths with those that were “possibly preventable,” ante, at 7, n. 4, that is, cases in which “[i]n the judgment of the reviewer,” 2008 Death Reviews 3, “it’s fifty-fifty that better care would have possibly prevented the death,” App. 2277; id., at 2256. As the majority acknowledges, even this class of cases is now dramatically diminished, and the three-judge court must take the current conditions into account when revising its remedy going forward. Ante, at 7, n. 4. Cite as: 563 U. S. ____ (2011) 7 ALITO, J., dissenting California prison system had the 13th lowest average mortality rate of all 50 state systems.6 The majority highlights past instances in which particu lar prisoners received shockingly deficient medical care. See ante, at 5, 6–7, 10 (recounting five incidents). But such anecdotal evidence cannot be given undue weight in assessing the current state of the California system. The population of the California prison system (156,000 in mates at the time of trial) is larger than that of many medium-sized cities,7 and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. Instances of past mistreatment in the California system are relevant, but prospective relief must be tailored to present and future, not past, conditions. II Under the PLRA, a court may not grant any prospective relief unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the “violation of [a] Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” §3626(a)(1)(A). In addition, the PLRA prohibits the issuance of a prisoner release order unless the court —————— 6 Bureau of Justice Statistics, State Prison Deaths, 2001–2007, avail able at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2093 (Table 13) (all Internet materials as visited May 20, 2011, and available in Clerk of Court’s case file); see also App. 2257–2258. California had the 14th lowest “ ‘average annual illness mortality [rate] per 100,000 state prisoners from 2001 to 2004.’ ” Juris. App. 125a. According to a 2007 report, state prisoners had a 19 percent lower death rate than the general U. S. adult population as of 2004. Bureau of Justice Statistics, Medical Causes of Death in State Prisons, 2001–2004, p. 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mcdsp04.pdf. 7 For example, the population of the California prison system ex- ceeds that of Syracuse, New York; Bridgeport, Connecticut; Springfield, Massachusetts; Eugene, Oregon; and Savannah, Georgia. 8 BROWN v. PLATA ALITO, J., dissenting finds “by clear and convincing evidence that . . . crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” §3626(a)(3)(E). These statutory restrictions largely reflect general standards for injunctive relief aimed at remedying consti tutional violations by state and local governments. “The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. . . . Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 419–420 (1977) (internal quotation marks omitted). Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State’s failure to provide constitutionally adequate health care. This argu ment is implausible on its face and is not supported by the requisite clear and convincing evidence. It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today’s opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority here include the following: “ ‘[e]xam tables and counter tops, where prisoners with . . . communicable diseases are treated, [are] not routinely disinfected,’ ” ante, at 10; medi cal facilities “ ‘are in an abysmal state of disrepair,’ ” ibid.; medications “ ‘are too often not available when needed,’ ” ante, at 10–11; “ ‘[b]asic medical equipment is often not available or used,’ ” ante, at 10; prisons “would ‘hire any doctor who had “a license, a pulse and a pair of shoes,” ’ ” ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a–121a (citing, among other things, staffing vacancies, too few Cite as: 563 U. S. ____ (2011) 9 ALITO, J., dissenting beds for mentally ill prisoners, and an outmoded records management system). Is it plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifica tions of prison physicians cannot be improved? A better records management system cannot be developed and implemented? I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to allevi ate those problems. Indeed, it is apparent that the pris oner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system’s overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system. The record bears this out. The Special Master stated dramatically that even releasing 100,000 inmates (two thirds of the California system’s entire inmate popula tion!) would leave the problem of providing mental health treatment “largely unmitigated.” App. 487. Similarly, the Receiver proclaimed that “ ‘those . . . who think that popu 10 BROWN v. PLATA ALITO, J., dissenting lation controls will solve California’s prison health care problems . . . are simply wrong.’ ” Juris. App. 282a. The State proposed several remedies other than a mas sive release of prisoners, but the three-judge court, seem ingly intent on attacking the broader problem of general overcrowding, rejected all of the State’s proposals. In doing so, the court made three critical errors. First, the court did not assess those proposals and other remedies in light of conditions proved to exist at the time the release order was framed. Had more recent evidence been taken into account, a less extreme remedy might have been shown to be sufficient. Second, the court failed to distinguish between condi tions that fall below the level that may be desirable as a matter of public policy and conditions that do not meet the minimum level mandated by the Constitution. To take one example, the court criticized the California system because prison doctors must conduct intake exams in areas separated by folding screens rather than in separate rooms, creating conditions that “do not allow for appropri ate confidentiality.” Id., at 88a. But the legitimate pri vacy expectations of inmates are greatly diminished, see Hudson v. Palmer, 468 U.S. 517, 525–526 (1984), and this Court has never suggested that the failure to provide private consultation rooms in prisons amounts to cruel and unusual punishment. Third, the court rejected alternatives that would not have provided “ ‘immediate’ ” relief. Juris. App. 148a. But nothing in the PLRA suggests that public safety may be sacrificed in order to implement an immediate remedy rather than a less dangerous one that requires a more extended but reasonable period of time. If the three-judge court had not made these errors, it is entirely possible that an adequate but less drastic reme dial plan could have been crafted. Without up-to-date information, it is not possible to specify what such a plan Cite as: 563 U. S. ____ (2011) 11 ALITO, J., dissenting might provide, and in any event, that is not a task that should be undertaken in the first instance by this Court. But possible components of such a plan are not hard to identify. Many of the problems noted above plainly could be addressed without releasing prisoners and without in curring the costs associated with a large-scale prison construction program. Sanitary procedures could be im proved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the num ber of medical and other staff positions could be increased. Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifica tions of medical personnel cannot be improved by any means short of a massive prisoner release. Without spe cific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better train ing and monitoring of performance. While the cost of a large-scale construction program may well exceed California’s current financial capabilities, a more targeted program, involving the repair and per haps the expansion of current medical facilities (as op posed to general prison facilities), might be manageable. After all, any remedy in this case, including the new pro grams associated with the prisoner release order and other proposed relief now before the three-judge court, will necessarily involve some state expenditures. Measures such as these might be combined with tar geted reductions in critical components of the State’s prison population. A certain number of prisoners in the classes on whose behalf the two cases were brought might be transferred to out-of-state facilities. The three-judge court rejected the State’s proposal to transfer prisoners to 12 BROWN v. PLATA ALITO, J., dissenting out-of-state facilities in part because the number of pro posed transfers was too small. See id., at 160a. See also ante, at 30. But this reasoning rested on the court’s insis tence on a reduction in the State’s general prison popula tion rather than the two plaintiff classes. When the State proposed to make a targeted transfer of prisoners in one of the plaintiff classes (i.e., prisoners needing mental health treatment), one of the District Judges blocked the transfers for fear that the out-of-state facilities would not provide a sufficiently high level of care. See App. 434–440. The District Judge even refused to allow out-of-state transfers for prisoners who volunteered for relocation. See id., at 437. And the court did this even though there was not even an allegation, let alone clear evidence, that the States to which these prisoners would have been sent were violating the Eighth Amendment. The District Judge presumed that the receiving States might fail to provide constitutionally adequate care, but “ ‘in the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.’ ” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14–15 (1926)); Postal Service v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government agen cies”); see also McKune v. Lile, 536 U.S. 24, 51 (2002) (O’Connor, J., concurring in judgment) (“[W]e may assume that the prison is capable of controlling its inmates so that respondent’s personal safety is not jeopardized . . . ,at least in the absence of proof to the contrary”).8 Finally, as a last resort, a much smaller release of pris —————— 8 The Court rejects the State’s argument that out-of-state transfers offer a less restrictive alternative to a prisoner release order because “requir ing out-of-state transfers itself qualifies as a population limit under the PLRA.” Ante, at 29–30. But the PLRA does not apply when the State voluntarily conducts such transfers, as it has sought to do. Cite as: 563 U. S. ____ (2011) 13 ALITO, J., dissenting oners in the two plaintiff classes could be considered. Plaintiffs proposed not only a systemwide population cap, but also a lower population cap for inmates in specialized programs. Tr. 2915:12–15 (Feb. 3, 2009). The three-judge court rejected this proposal, and its response exemplified what went wrong in this case. One judge complained that this remedy would be deficient because it would protect only the members of the plaintiff classes. The judge stated: “The only thing is we would be protecting the class members. And maybe that’s the appropriate thing to do. I mean, that’s what this case is about, but it would be . . . difficult for me to say yes, and the hell with everybody else.” Id., at 2915:23–2916:2. Overstepping his authority, the judge was not content to provide relief for the classes of plaintiffs on whose behalf the suit before him was brought. Nor was he content to remedy the only constitutional violations that were proved—which concerned the treatment of the members of those classes. Instead, the judge saw it as his responsibil ity to attack the general problem of overcrowding. III Before ordering any prisoner release, the PLRA com mands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that pris oner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Phila delphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadel phia prison system, and thousands of inmates were set 14 BROWN v. PLATA ALITO, J., dissenting free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thou sands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience.10 Despite the record of past prisoner release orders, the three-judge court in this case concluded that loosing 46,000 criminals would not produce a tally like that in Philadelphia and would actually improve public safety. Juris. App. 248a–249a. In reaching this debatable con clusion, the three-judge court relied on the testimony of selected experts, id., at 248a, and the majority now defers to what it characterizes as the lower court’s findings of fact on this controversial public policy issue, ante, at 15, 19–20, 24. This is a fundamental and dangerous error. When a —————— 9 Hearing on Prison Reform before the Senate Committee on the Ju diciary, 104th Cong., 1st Sess., 49 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia); Hearings before the Subcommittee on Crime of the House Committee on the Judiciary, 104th Cong., 1st Sess., 259 (1995) (same); see also Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 110th Cong., 2d Sess., 31 (2008) (statement of Sarah V. Hart, Assistant District Attorney, Philadelphia District Attorney’s Office). 10 Condemning the inappropriate imposition of prison population caps, Senator Sarbanes cited “the case of Philadelphia, where a court ordered prison cap has put thousands of violent criminals back on the city’s streets, often with disastrous consequences.” 141 Cong. Rec. 26549 (1995). Senator Abraham complained that “American citizens are put at risk every day by court decrees . . . that cure prison crowding by declaring that we must free dangerous criminals before they have served their time.” Id., at 26448. “The most egregious example,” he added, “is the city of Philadelphia.” Ibid. Cite as: 563 U. S. ____ (2011) 15 ALITO, J., dissenting trial court selects between the competing views of experts on broad empirical questions such as the efficacy of preventing crime through the incapacitation of convicted criminals, the trial court’s choice is very different from a classic finding of fact and is not entitled to the same de gree of deference on appeal. The particular three-judge court convened in this case was “confident” that releasing 46,000 prisoners pursuant to its plan “would in fact benefit public safety.” Juris. App. 248a–249a. According to that court, “overwhelming evidence” supported this purported finding. Id., at 232a. But a more cautious court, less bent on implementing its own criminal justice agenda, would have at least acknowl edged that the consequences of this massive prisoner release cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this re lease will produce results similar to those under prior court-ordered population caps. After all, the sharp in crease in the California prison population that the three judge court lamented, see id., at 254a, has been accompa nied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration —————— 11 From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Simi larly, in the United States from 1992 to 2009, the violent crime rate per 100,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov. 12 According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007). 13 Paternoster, How Much Do We Really Know About Criminal Deter 16 BROWN v. PLATA ALITO, J., dissenting in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect. Commenting on the testimony of an expert who stated that he could not be certain about the effect of the massive prisoner discharge on public safety, the three-judge court complained that “[s]uch equivocal testimony is not help ful.” Id., at 247a. But testimony pointing out the diffi culty of assessing the consequences of this drastic remedy would have been valued by a careful court duly mindful of the overriding need to guard public safety. The three-judge court acknowledged that it “ha[d] not evaluated the public safety impact of each individual element” of the population reduction plan it ordered the State to implement. App. to Juris. Statement 3a. The majority argues that the three-judge court nevertheless gave substantial weight to public safety because its order left “details of implementation to the State’s discretion.” Ante, at 41. Yet the State had told the three-judge court that, after studying possible population reduction meas ures, it concluded that “reducing the prison population to 137.5% within a two-year period cannot be accomplished without unacceptably compromising public safety.” Juris. App. 317a. The State found that public safety required a 5-year period in which to achieve the ordered reduction. Ibid. Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court dis charged its obligation to “give substantial weight to any adverse impact on public safety,” §3626(a)(1)(A), by defer ring to officials who did not believe the reduction could be —————— rence? 100 J. Crim. L. & Criminology 765, 801 (2010) (citing research on this issue). Cite as: 563 U. S. ____ (2011) 17 ALITO, J., dissenting accomplished in a safe manner. I do not believe the PLRA’s public-safety requirement is so trivial. The members of the three-judge court and the experts on whom they relied may disagree with key elements of the crime-reduction program that the State of California has pursued for the past few decades, including “the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws.” Id., at 254a. And experts such as the Receiver are entitled to take the view that the State should “re-thin[k] the place of incarceration in its criminal justice system,” App. 489. But those controversial opinions on matters of criminal justice policy should not be permitted to override the reasonable policy view that is implicit in the PLRA—that prisoner release orders present an inherent risk to the safety of the public. * * * The prisoner release ordered in this case is unprece dented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.

The decree in this case is a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA), 1 Stat. 1321–66, was enacted to prevent. The Constitution does not give federal judges the au thority to run state penal systems. Decisions regarding state prisons have profound public safety and financial implications, and the States are generally free to make these decisions as they choose. See Turner v. Safley, 482 U.S. 78, 85 (1987). The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’s necessities.” (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach. In this case, a three-judge court exceeded its authority under the Constitution and the PLRA. The court ordered a radical reduction in the California prison population 2 BROWN v. PLATA ALITO, J., dissenting without finding that the current population level violates the Constitution. Two cases were before the three-judge court, and neither targeted the general problem of overcrowding. Indeed, the plaintiffs in one of those cases readily acknowledge that the current population level is not itself unconstitutional. Brief for Coleman Appellees 56. Both of the cases were brought not on behalf of all inmates subjected to over crowding, but rather in the interests of much more limited classes of prisoners, namely, those needing mental health treatment and those with other serious medical needs. But these cases were used as a springboard to implement a criminal justice program far different from that chosen by the state legislature. Instead of crafting a remedy to attack the specific constitutional violations that were found—which related solely to prisoners in the two plain tiff classes—the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety. The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions. The approach taken by the three-judge court flies in the face of the PLRA. Contrary to the PLRA, the court’s rem edy is not narrowly tailored to address proven and ongoing constitutional violations. And the three-judge court vio lated the PLRA’s critical command that any court con templating a prisoner release order must give “substantial weight to any adverse impact on public safety.” 18 U.S. C. The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. Juris. Statement App., O. T. 2009, No. 09–416, pp. 248a–249a (hereinafter Juris. App.). Common sense and experience counsel greater caution. Cite as: 563 U. S. (2011) 3 ALITO, J., dissenting I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in hold ing that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety. I Both the PLRA and general principles concerning in junctive relief dictate that a prisoner release order cannot properly be issued unless the relief is necessary to remedy an ongoing violation. Under the PLRA, a prisoner release may be decreed only if crowding “is the primary cause” of an Eighth Amendment violation and only if no other re lief “will remedy” the violation. (emphasis added). This language makes it clear that proof of past violations alone is insufficient to justify a court-ordered prisoner release. Similarly, in cases not governed by the PLRA, we have held that an inmate seeking an injunction to prevent a violation of the Eighth Amendment must show that prison officials are “knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so into the future.” The “deliberate indifference” needed to establish an Eighth Amendment violation must be examined “in light of the prison authorities’ current attitudes and conduct,” 36 (1993), which means “their attitudes and conduct at the time suit is brought and persisting thereafter,” Farmer, For these reasons, the propriety of the relief ordered here cannot be assessed without ascertaining the nature and scope of any ongoing constitutional violations. Proof 4 BROWN v. PLATA ALITO, J., dissenting of past violations will not do; nor is it sufficient simply to establish that some violations continue. The scope of permissible relief depends on the scope of any continuing violations, and therefore it was essential for the three judge court to make a reliable determination of the extent of any violations as of the time its release order was is sued. Particularly in light of the radical nature of its chosen remedy, nothing less than an up-to-date assess ment was tolerable. The three-judge court, however, relied heavily on out dated information and findings and refused to permit California to introduce new evidence. Despite evidence of improvement,1 the three-judge court relied on old findings made by the single-judge courts, see Juris. App. 76a–77a, including a finding made 14 years earlier, see at 170a (citing (ED Cal. 1995)). The three-judge court highlighted death statistics from 2005, see Juris. App. 9a, while ignoring the “significant and continuous decline since 2006,” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 31 (Dec. 2009) (hereinafter 2008 Death Reviews). And the court dwelled on conditions at a facility that has since been replaced. See Juris. App. 19a–20a, 24a, 89a–90a, 94a, 7a, 111a. Prohibiting the State from introducing evidence about conditions as of the date when the prisoner release order was under consideration, at 76a–78a, and n. 42, the three-judge court explicitly stated that it would not “evalu ate the state’s continuing constitutional violations.” at —————— 1 Before requesting the appointment of a three-judge court, the Dis trict Court in Coleman recognized “commendable progress” in the State’s effort to provide adequate mental health care, Juris. App. 294a, and the District Court in Plata acknowledged that “the Receiver has made much progress since his appointment,” at 280a. The report of the Special Master to which the Court refers, ante, at 18–19, identifies a “generally positive trend.” App. 803. Cite as: 563 U. S. (2011) 5 ALITO, J., dissenting 77a. Instead, it based its remedy on constitutional defi ciencies that, in its own words, were found “years ago.” 2 The three-judge court justified its refusal to receive up to-date evidence on the ground that the State had not filed a motion to terminate prospective relief under a provision of the PLRA, See Juris. App. 77a. Today’s opinion for this Court endorses that reasoning, ante, at 26. But the State’s opportunity to file such a motion did not eliminate the three-judge court’s obligation to ensure that its relief was necessary to remedy ongoing violations.3 Moreover, the lower court’s reasoning did not properly take into account the potential significance of the evidence that the State sought to introduce. Even if that evidence did not show that all violations had ceased—the showing needed to obtain the termination of relief under evidence was highly relevant with respect to the nature and scope of permissible relief.4 —————— 2 For this reason, it is simply not the case that “evidence of current conditions informed every aspect of the judgment of the three-judge court,” as the majority insists, ante, at 25. 3 Because the Ninth Circuit places the burden on the State to prove the absence of an ongoing violation when it moves to terminate pro spective relief, see (CA9 2000), even if the State had unsuccessfully moved to terminate pro spective relief under 18 U.S. C. there would still have been no determination that plaintiffs had carried their burden under the PLRA to establish by clear and convincing evidence that a prisoner release order is necessary to correct an ongoing rights violation. 4 It is also no answer to say, as the Court now does, ante, at 26, that the State had the opportunity to resist the convening of the three-judge court on the ground that there were no unremedied constitutional violations as of that date. See The District Courts granted plaintiffs’ motions to convene a three-judge court in 2007, three years before the remedial decree here was issued. Thus, the conditions in the prison system as of the date when the decree was issued were not necessarily the same as those that existed before the three-judge court proceedings began. Moreover, as noted above, even if all of the viola tions in the system had not been cured at the time of the remedial 6 BROWN v. PLATA ALITO, J., dissenting The majority approves the three-judge court’s refusal to receive fresh evidence based largely on the need for “[o]r derly trial management.” Ante, at 26. The majority rea sons that the three-judge court had closed the book on the question of constitutional violations and had turned to the question of remedy. As noted, however, the ex- tent of any continuing constitutional violations was highly relevant to the question of remedy. The majority also countenances the three-judge court’s reliance on dated findings. The majority notes that the lower court considered recent reports by the Special Mas ter and Receiver, ante, at 18–19, but the majority provides no persuasive justification for the lower court’s refusal to receive hard, up-to-date evidence about any continuing violations. With the safety of the people of California in the balance, the record on this issue should not have been closed. The majority repeats the lower court’s error of reciting statistics that are clearly out of date. The Court notes the lower court’s finding that as of 2005 “an inmate in one of California’s prisons needlessly dies every six to seven days.” See ante, at 9. Yet by the date of the trial before the three-judge court, the death rate had been trending downward for quarters, App. 2257, and the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent.5 Between 2001 and 2007, the —————— decree, an accurate assessment of conditions as of that date was essen tial in order to ensure that the relief did not sweep more broadly than necessary. 5 2008 Death Reviews 22. The majority elides the improvement by combining likely preventable deaths with those that were “possibly preventable,” ante, at 7, n. 4, that is, cases in which “[i]n the judgment of the reviewer,” 2008 Death Reviews 3, “it’s fifty-fifty that better care would have possibly prevented the death,” App. 2277; As the majority acknowledges, even this class of cases is now dramatically diminished, and the three-judge court must take the current conditions into account when revising its remedy going forward. Ante, at 7, n. 4. Cite as: 563 U. S. (2011) 7 ALITO, J., dissenting California prison system had the 13th lowest average mortality rate of all 50 state systems.6 The majority highlights past instances in which particu lar prisoners received shockingly deficient medical care. See ante, at 5, 6–7, (recounting five incidents). But such anecdotal evidence cannot be given undue weight in assessing the current state of the California system. The population of the California prison system (156,000 in mates at the time of trial) is larger than that of many medium-sized cities,7 and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. Instances of past mistreatment in the California system are relevant, but prospective relief must be tailored to present and future, not past, conditions. II Under the PLRA, a court may not grant any prospective relief unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the “violation of [a] Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” In addition, the PLRA prohibits the issuance of a prisoner release order unless the court —————— 6 Bureau of Justice Statistics, State Prison Deaths, 2001–2007, avail able at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2093 (Table 13) (all Internet materials as visited May 20, 2011, and available in Clerk of Court’s case file); see also App. 2257–2258. California had the 14th lowest “ ‘average annual illness mortality [rate] per 0,000 state prisoners from 2001 to 2004.’ ” Juris. App. 125a. According to a 2007 report, state prisoners had a 19 percent lower death rate than the general U. S. adult population as of 2004. Bureau of Justice Statistics, Medical Causes of Death in State Prisons, 2001–2004, p. 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mcdsp04.pdf. 7 For example, the population of the California prison system ex- ceeds that of Syracuse, New York; Bridgeport, Connecticut; Springfield, Massachusetts; Eugene, Oregon; and Savannah, Georgia. 8 BROWN v. PLATA ALITO, J., dissenting finds “by clear and convincing evidence that crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” These statutory restrictions largely reflect general standards for injunctive relief aimed at remedying consti tutional violations by state and local governments. “The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Dayton Bd. of (internal quotation marks omitted). Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State’s failure to provide constitutionally adequate health care. This argu ment is implausible on its face and is not supported by the requisite clear and convincing evidence. It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today’s opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority here include the following: “ ‘[e]xam tables and counter tops, where prisoners with communicable diseases are treated, [are] not routinely disinfected,’ ” ante, at ; medi cal facilities “ ‘are in an abysmal state of disrepair,’ ” ibid.; medications “ ‘are too often not available when needed,’ ” ante, at –11; “ ‘[b]asic medical equipment is often not available or used,’ ” ante, at ; prisons “would ‘hire any doctor who had “a license, a pulse and a pair of shoes,” ’ ” ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a–121a (citing, among other things, staffing vacancies, too few Cite as: 563 U. S. (2011) 9 ALITO, J., dissenting beds for mentally ill prisoners, and an outmoded records management system). Is it plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifica tions of prison physicians cannot be improved? A better records management system cannot be developed and implemented? I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to allevi ate those problems. Indeed, it is apparent that the pris oner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system’s overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system. The record bears this out. The Special Master stated dramatically that even releasing 0,000 inmates (two thirds of the California system’s entire inmate popula tion!) would leave the problem of providing mental health treatment “largely unmitigated.” App. 487. Similarly, the Receiver proclaimed that “ ‘those who think that popu BROWN v. PLATA ALITO, J., dissenting lation controls will solve California’s prison health care problems are simply wrong.’ ” Juris. App. 282a. The State proposed several remedies other than a mas sive release of prisoners, but the three-judge court, seem ingly intent on attacking the broader problem of general overcrowding, rejected all of the State’s proposals. In doing so, the court made three critical errors. First, the court did not assess those proposals and other remedies in light of conditions proved to exist at the time the release order was framed. Had more recent evidence been taken into account, a less extreme remedy might have been shown to be sufficient. Second, the court failed to distinguish between condi tions that fall below the level that may be desirable as a matter of public policy and conditions that do not meet the minimum level mandated by the Constitution. To take one example, the court criticized the California system because prison doctors must conduct intake exams in areas separated by folding screens rather than in separate rooms, creating conditions that “do not allow for appropri ate confidentiality.” at 88a. But the legitimate pri vacy expectations of inmates are greatly diminished, see and this Court has never suggested that the failure to provide private consultation rooms in prisons amounts to cruel and unusual punishment. Third, the court rejected alternatives that would not have provided “ ‘immediate’ ” relief. Juris. App. 148a. But nothing in the PLRA suggests that public safety may be sacrificed in order to implement an immediate remedy rather than a less dangerous one that requires a more extended but reasonable period of time. If the three-judge court had not made these errors, it is entirely possible that an adequate but less drastic reme dial plan could have been crafted. Without up-to-date information, it is not possible to specify what such a plan Cite as: 563 U. S. (2011) 11 ALITO, J., dissenting might provide, and in any event, that is not a task that should be undertaken in the first instance by this Court. But possible components of such a plan are not hard to identify. Many of the problems noted above plainly could be addressed without releasing prisoners and without in curring the costs associated with a large-scale prison construction program. Sanitary procedures could be im proved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the num ber of medical and other staff positions could be increased. Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifica tions of medical personnel cannot be improved by any means short of a massive prisoner release. Without spe cific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better train ing and monitoring of performance. While the cost of a large-scale construction program may well exceed California’s current financial capabilities, a more targeted program, involving the repair and per haps the expansion of current medical facilities (as op posed to general prison facilities), might be manageable. After all, any remedy in this case, including the new pro grams associated with the prisoner release order and other proposed relief now before the three-judge court, will necessarily involve some state expenditures. Measures such as these might be combined with tar geted reductions in critical components of the State’s prison population. A certain number of prisoners in the classes on whose behalf the two cases were brought might be transferred to out-of-state facilities. The three-judge court rejected the State’s proposal to transfer prisoners to 12 BROWN v. PLATA ALITO, J., dissenting out-of-state facilities in part because the number of pro posed transfers was too small. See at 160a. See also ante, at 30. But this reasoning rested on the court’s insis tence on a reduction in the State’s general prison popula tion rather than the two plaintiff classes. When the State proposed to make a targeted transfer of prisoners in one of the plaintiff classes (i.e., prisoners needing mental health treatment), one of the District Judges blocked the transfers for fear that the out-of-state facilities would not provide a sufficiently high level of care. See App. 434–440. The District Judge even refused to allow out-of-state transfers for prisoners who volunteered for relocation. See And the court did this even though there was not even an allegation, let alone clear evidence, that the States to which these prisoners would have been sent were violating the Eighth Amendment. The District Judge presumed that the receiving States might fail to provide constitutionally adequate care, but “ ‘in the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.’ ” United States v. Armstrong, 7 U.S. 456, 464 (1996) ); Postal Service v. Gregory, (“[A] presumption of regularity attaches to the actions of Government agen cies”); see also (O’Connor, J., concurring in judgment) (“[W]e may assume that the prison is capable of controlling its inmates so that respondent’s personal safety is not jeopardizedat least in the absence of proof to the contrary”).8 Finally, as a last resort, a much smaller release of pris —————— 8 The Court rejects the State’s argument that out-of-state transfers offer a less restrictive alternative to a prisoner release order because “requir ing out-of-state transfers itself qualifies as a population limit under the PLRA.” Ante, at 29–30. But the PLRA does not apply when the State voluntarily conducts such transfers, as it has sought to do. Cite as: 563 U. S. (2011) 13 ALITO, J., dissenting oners in the two plaintiff classes could be considered. Plaintiffs proposed not only a systemwide population cap, but also a lower population cap for inmates in specialized programs. Tr. 2915:12–15 (Feb. 3, 2009). The three-judge court rejected this proposal, and its response exemplified what went wrong in this case. One judge complained that this remedy would be deficient because it would protect only the members of the plaintiff classes. The judge stated: “The only thing is we would be protecting the class members. And maybe that’s the appropriate thing to do. I mean, that’s what this case is about, but it would be difficult for me to say yes, and the hell with everybody else.” at 2915:23–2916:2. Overstepping his authority, the judge was not content to provide relief for the classes of plaintiffs on whose behalf the suit before him was brought. Nor was he content to remedy the only constitutional violations that were proved—which concerned the treatment of the members of those classes. Instead, the judge saw it as his responsibil ity to attack the general problem of overcrowding. III Before ordering any prisoner release, the PLRA com mands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” This provision unmistakably reflects Congress’ view that pris oner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Phila delphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadel phia prison system, and thousands of inmates were set 14 BROWN v. PLATA ALITO, J., dissenting free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thou sands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience. Despite the record of past prisoner release orders, the three-judge court in this case concluded that loosing 46,000 criminals would not produce a tally like that in Philadelphia and would actually improve public safety. Juris. App. 248a–249a. In reaching this debatable con clusion, the three-judge court relied on the testimony of selected experts, at 248a, and the majority now defers to what it characterizes as the lower court’s findings of fact on this controversial public policy issue, ante, at 15, 19–20, 24. This is a fundamental and dangerous error. When a —————— 9 Hearing on Prison Reform before the Senate Committee on the Ju diciary, 4th Cong., 1st Sess., 49 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia); Hearings before the Subcommittee on Crime of the House Committee on the Judiciary, 4th Cong., 1st Sess., 259 (1995) (same); see also Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 1th Cong., 2d Sess., 31 (2008) (statement of Sarah V. Hart, Assistant District Attorney, Philadelphia District Attorney’s Office). Condemning the inappropriate imposition of prison population caps, Senator Sarbanes cited “the case of Philadelphia, where a court ordered prison cap has put thousands of violent criminals back on the city’s streets, often with disastrous consequences.” 141 Cong. Rec. 26549 (1995). Senator Abraham complained that “American citizens are put at risk every day by court decrees that cure prison crowding by declaring that we must free dangerous criminals before they have served their time.” “The most egregious example,” he added, “is the city of Philadelphia.” Cite as: 563 U. S. (2011) 15 ALITO, J., dissenting trial court selects between the competing views of experts on broad empirical questions such as the efficacy of preventing crime through the incapacitation of convicted criminals, the trial court’s choice is very different from a classic finding of fact and is not entitled to the same de gree of deference on appeal. The particular three-judge court convened in this case was “confident” that releasing 46,000 prisoners pursuant to its plan “would in fact benefit public safety.” Juris. App. 248a–249a. According to that court, “overwhelming evidence” supported this purported finding. at 232a. But a more cautious court, less bent on implementing its own criminal justice agenda, would have at least acknowl edged that the consequences of this massive prisoner release cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this re lease will produce results similar to those under prior court-ordered population caps. After all, the sharp in crease in the California prison population that the three judge court lamented, see at 254a, has been accompa nied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration —————— 11 From 1992 to 2009, the violent crime rate in California per 0,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Simi larly, in the United States from 1992 to 2009, the violent crime rate per 0,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov. 12 According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007). 13 Paternoster, How Much Do We Really Know About Criminal Deter 16 BROWN v. PLATA ALITO, J., dissenting in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect. Commenting on the testimony of an expert who stated that he could not be certain about the effect of the massive prisoner discharge on public safety, the three-judge court complained that “[s]uch equivocal testimony is not help ful.” at 247a. But testimony pointing out the diffi culty of assessing the consequences of this drastic remedy would have been valued by a careful court duly mindful of the overriding need to guard public safety. The three-judge court acknowledged that it “ha[d] not evaluated the public safety impact of each individual element” of the population reduction plan it ordered the State to implement. App. to Juris. Statement 3a. The majority argues that the three-judge court nevertheless gave substantial weight to public safety because its order left “details of implementation to the State’s discretion.” Ante, at 41. Yet the State had told the three-judge court that, after studying possible population reduction meas ures, it concluded that “reducing the prison population to 137.5% within a two-year period cannot be accomplished without unacceptably compromising public safety.” Juris. App. 317a. The State found that public safety required a 5-year period in which to achieve the ordered reduction. Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court dis charged its obligation to “give substantial weight to any adverse impact on public safety,” by defer ring to officials who did not believe the reduction could be —————— rence? 0 J. Crim. L. & Criminology 765, (20) (citing research on this issue). Cite as: 563 U. S. (2011) 17 ALITO, J., dissenting accomplished in a safe manner. I do not believe the PLRA’s public-safety requirement is so trivial. The members of the three-judge court and the experts on whom they relied may disagree with key elements of the crime-reduction program that the State of California has pursued for the past few decades, including “the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws.” at 254a. And experts such as the Receiver are entitled to take the view that the State should “re-thin[k] the place of incarceration in its criminal justice system,” App. 489. But those controversial opinions on matters of criminal justice policy should not be permitted to override the reasonable policy view that is implicit in the PLRA—that prisoner release orders present an inherent risk to the safety of the public. * * * The prisoner release ordered in this case is unprece dented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.

Justice Roberts

majority

Knight v. CIR

2008-01-16

https://www.courtlistener.com/opinion/145836/knight-v-cir/

https://www.courtlistener.com/api/rest/v3/clusters/145836/

2007-012

Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed 2% of adjusted gross income. A trust may also claim those deductions, also subject to the 2% floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the 2% floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals. I The Internal Revenue Code imposes a tax on the "taxable income" of both individuals and trusts. 26 U.S.C. § 1(a). The Code instructs that the calculation of taxable income begins with a determination of "gross income," capaciously defined as "all income from whatever source derived." § 61(a). "Adjusted gross income" is then calculated by subtracting from gross income certain "above-the-line" deductions, such as trade and business expenses and losses from the sale or exchange of property. § 62(a). Finally, taxable income is calculated by subtracting from adjusted gross income "itemized deductions"—also known as "below-the-line" deductions—defined as all allowable deductions other than the "above-the-line" deductions identified in § 62(a) and the deduction for personal exemptions allowed under § 151 (2000 ed. and Supp. V). § 63(d) (2000 ed.). Before the passage of the Tax Reform Act of 1986, 100 Stat. 2085, below-the-line deductions were deductible in full. This system resulted in significant complexity and potential for abuse, requiring "extensive [taxpayer] recordkeeping with regard to what commonly are small expenditures," as well as "significant administrative and enforcement problems for the Internal Revenue Service." H.R.Rep. No. 99-426, p. 109 (1985). In response, Congress enacted what is known as the "2% floor" by adding § 67 to the Code. Section 67(a) provides that "the miscellaneous itemized deductions for any taxable year shall be allowed only to the extent that the aggregate of such deductions exceeds 2 percent of adjusted gross income." The term "miscellaneous itemized deductions" is defined to include all itemized deductions other than certain ones specified in § 67(b). Investment advisory fees are deductible pursuant to 26 U.S.C. § 212. Because § 212 is not listed in § 67(b) as one of the categories of expenses that may be deducted in full, such fees are "miscellaneous itemized deductions" subject to the 2% floor. 26 CFR § 1.67-1T(a)(1)(ii) (2007). Section 67(e) makes the 2% floor generally applicable not only to individuals but also to estates and trusts,[1] with one exception relevant here. Under this exception, "the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual, except that ... the deductions for costs which are paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such trust or *786 estate ... shall be treated as allowable" and not subject to the 2% floor. § 67(e)(1). Petitioner Michael J. Knight is the trustee of the William L. Rudkin Testamentary Trust, established in the State of Connecticut in 1967. In 2000, the Trustee hired Warfield Associates, Inc., to provide advice with respect to investing the Trust's assets. At the beginning of the tax year, the Trust held approximately $2.9 million in marketable securities, and it paid Warfield $22,241 in investment advisory fees for the year. On its fiduciary income tax return for 2000, the Trust reported total income of $624,816, and it deducted in full the investment advisory fees paid to Warfield. After conducting an audit, respondent Commissioner of Internal Revenue found that these investment advisory fees were miscellaneous itemized deductions subject to the 2% floor. The Commissioner therefore allowed the Trust to deduct the investment advisory fees, which were the only claimed deductions subject to the floor, only to the extent that they exceeded 2% of the Trust's adjusted gross income. The discrepancy resulted in a tax deficiency of $4,448. The Trust filed a petition in the United States Tax Court seeking review of the assessed deficiency. It argued that the Trustee's fiduciary duty to act as a "prudent investor" under the Connecticut Uniform Prudent Investor Act, Conn. Gen. Stat. §§ 45a-541a to 45a-541l (2007),[2] required the Trustee to obtain investment advisory services, and therefore to pay investment advisory fees. The Trust argued that such fees are accordingly unique to trusts and therefore fully deductible under 26 U.S.C. § 67(e)(1). The Tax Court rejected this argument, holding that § 67(e)(1) allows full deductibility only for expenses that are not commonly incurred outside the trust setting. Because investment advisory fees are commonly incurred by individuals, the Tax Court held that they are subject to the 2% floor when incurred by a trust. Rudkin Testamentary Trust v. Commissioner, 124 T.C. 304, 309-311, 2005 WL 1503675 (2005). The Trust appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals concluded that, in determining whether costs such as investment advisory fees are fully deductible or subject to the 2% floor, § 67(e) "directs the inquiry toward the counterfactual condition of assets held individually instead of in trust," and requires "an objective determination of whether the particular cost is one that is peculiar to trusts and one that individuals are incapable of incurring." 467 F.3d 149, 155, 156 (2006). The court held that because investment advisory fees were "costs of a type that could be incurred if the property were held individually rather than in trust," deduction of such fees by the Trust was subject to the 2% floor. Id., at 155-156. The Courts of Appeals are divided on the question presented. The Sixth Circuit has held that investment advisory fees are fully deductible. O'Neill v. Commissioner, 994 F.2d 302, 304 (1993). In contrast, both the Fourth and Federal Circuits have held *787 that such fees are subject to the 2% floor, because they are "commonly" or "customarily" incurred outside of trusts. See Scott v. United States, 328 F.3d 132, 140 (C.A.4 2003); Mellon Bank, N.A. v. United States, 265 F.3d 1275, 1281 (C.A.Fed.2001). The Court of Appeals below came to the same conclusion, but as noted announced a more exacting test, allowing "full deduction only for those costs that could not have been incurred by an individual property owner." 467 F.3d, at 156 (emphasis added). We granted the Trustee's petition for certiorari to resolve the conflict, 551 U.S. ___, 127 S. Ct. 3005, 168 L. Ed. 2d 725 (2007), and now affirm. II "We start, as always, with the language of the statute." Williams v. Taylor, 529 U.S. 420, 431, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000). Section 67(e) sets forth a general rule: "[T]he adjusted gross income of [a] ... trust shall be computed in the same manner as in the case of an individual." That is, trusts can ordinarily deduct costs subject to the same 2% floor that applies to individuals' deductions. Section 67(e) provides for an exception to the 2% floor when two conditions are met. First, the relevant cost must be "paid or incurred in connection with the administration of the ... trust." § 67(e)(1). Second, the cost must be one "which would not have been incurred if the property were not held in such trust." Ibid. In applying the statute, the Court of Appeals below asked whether the cost at issue could have been incurred by an individual.[3] This approach flies in the face of the statutory language. The provision at issue asks whether the costs "would not have been incurred if the property were not held" in trust, ibid., not, as the Court of Appeals would have it, whether the costs "could not have been incurred" in such a case, 467 F.3d, at 156. The fact that an individual could not do something is one reason he would not, but not the only possible reason. If Congress had intended the Court of Appeals' reading, it easily could have replaced "would" in the statute with "could," and presumably would have. The fact that it did not adopt this readily available and apparent alternative strongly supports rejecting the Court of Appeals' reading.[4] *788 Moreover, if the Court of Appeals' reading were correct, it is not clear why Congress would have included in the statute the first clause of § 67(e)(1). If the only costs that are fully deductible are those that could not be incurred outside the trust context—that is, that could only be incurred by trusts—then there would be no reason to place the further condition on full deductibility that the costs be "paid or incurred in connection with the administration of the ... trust," § 67(e)(1). We can think of no expense that could be incurred exclusively by a trust but would nevertheless not be "paid or incurred in connection with" its administration. The Trustee argues that the exception in § 67(e)(1) "establishes a straightforward causation test." Brief for Petitioner 22. The proper inquiry, the Trustee contends, is "whether a particular expense of a particular trust or estate was caused by the fact that the property was held in the trust or estate." Ibid. Investment advisory fees incurred by a trust, the argument goes, meet this test because these costs are caused by the trustee's obligation "to obtain advice on investing trust assets in compliance with the Trustees' particular fiduciary duties." Ibid. We reject this reading as well. On the Trustee's view, the statute operates only to distinguish costs that are incurred by virtue of a trustee's fiduciary duties from those that are not. But all (or nearly all) of a trust's expenses are incurred because the trustee has a duty to incur them; otherwise, there would be no reason for the trust to incur the expense in the first place. See G. Bogert & G. Bogert, Law of Trusts and Trustees § 801, p. 134 (2d rev. ed. 1981) ("[T]he payment for expenses must be reasonably necessary to facilitate administration of the trust"). As an example of a type of trust-related expense that would be subject to the 2% floor, the Trustee offers "expenses for routine maintenance of real property" held by a trust. Brief for Petitioner 23. But such costs would appear to be fully deductible under the Trustee's own reading, because a trustee is obligated to incur maintenance expenses in light of the fiduciary duty to maintain trust property. See 1 Restatement (Second) of Trusts § 176, p. 381 (1957) ("The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property"). Indeed, the Trustee's formulation of its argument is circular: "Trust investment advice fees are caused by the fact the property is held in trust." Brief for Petitioner 19. But "trust investment advice fees" are only aptly described as such because the property is held in trust; the statute asks whether such costs would be incurred by an individual if the property were not. Even when there is a clearly analogous category of costs that would be incurred by individuals, the Trustee's reading would exempt most or all trust costs as fully deductible merely because they derive from a trustee's fiduciary duty. Adding the modifier "trust" to costs that otherwise would be incurred by an individual surely cannot be enough to escape the 2% floor. What is more, if the Trustee's position were correct, then only the first clause of § 67(e)(1)—providing that the cost be "incurred in connection with the administration of the ... trust"—would be necessary. The statute's second, limiting condition— that the cost also be one "which would not have been incurred if the property were not held in such trust"—would do no work; *789 we see no difference in saying, on the one hand, that costs are "caused by" the fact that the property is held in trust and, on the other, that costs are incurred "in connection with the administration" of the trust. Thus, accepting the Trustee's approach "would render part of the statute entirely superfluous, something we are loath to do." Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 166, 125 S. Ct. 577, 160 L. Ed. 2d 548 (2004). The Trustee's reading is further undermined by our inclination, "[i]n construing provisions ... in which a general statement of policy is qualified by an exception, [to] read the exception narrowly in order to preserve the primary operation of the provision." Commissioner v. Clark, 489 U.S. 726, 739, 109 S. Ct. 1455, 103 L. Ed. 2d 753 (1989). As we have said, § 67(e) sets forth a general rule for purposes of the 2% floor established in § 67(a): "For purposes of this section, the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual." Under the Trustee's reading, § 67(e)(1)'s exception would swallow the general rule; most (if not all) expenses incurred by a trust would be fully deductible. "Given that Congress has enacted a general rule ..., we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception." Ibid. More to the point, the statute by its terms does not "establis[h] a straightforward causation test," Brief for Petitioner 22, but rather invites a hypothetical inquiry into the treatment of the property were it held outside a trust. The statute does not ask whether a cost was incurred because the property is held by a trust; it asks whether a particular cost "would not have been incurred if the property were not held in such trust," § 67(e)(1). "Far from examining the nature of the cost at issue from the perspective of whether it was caused by the trustee's duties, the statute instead looks to the counterfactual question of whether individuals would have incurred such costs in the absence of a trust." Brief for Respondent 9. This brings us to the test adopted by the Fourth and Federal Circuits: Costs incurred by trusts that escape the 2% floor are those that would not "commonly" or "customarily" be incurred by individuals. See Scott, 328 F.3d, at 140 ("Put simply, trust-related administrative expenses are subject to the 2% floor if they constitute expenses commonly incurred by individual taxpayers"); Mellon Bank, 265 F.3d, at 1281 (§ 67(e) "treats as fully deductible only those trust-related administrative expenses that are unique to the administration of a trust and not customarily incurred outside of trusts"). The Solicitor General also accepts this view as an alternative reading of the statute. See Brief for Respondent 20-21. We agree with this approach. The question whether a trust-related expense is fully deductible turns on a prediction about what would happen if a fact were changed—specifically, if the property were held by an individual rather than by a trust. In the context of making such a prediction, when there is uncertainty about the answer, the word "would" is best read as "express[ing] concepts such as custom, habit, natural disposition, or probability." Scott, supra, at 139. See Webster's Third New International Dictionary 2637-2638 (1993); American Heritage Dictionary 2042, 2059 (3d ed.1996). The Trustee objects that the statutory text "does not ask whether expenses are `customarily' incurred outside of trusts," Reply Brief for Petitioner 15, but that is the direct import of the language in context. The text requires determining what would happen if a fact were changed; such an exercise necessarily *790 entails a prediction; and predictions are based on what would customarily or commonly occur. Thus, in asking whether a particular type of cost "would not have been incurred" if the property were held by an individual, § 67(e)(1) excepts from the 2% floor only those costs that it would be uncommon (or unusual, or unlikely) for such a hypothetical individual to incur. III Having decided on the proper reading of § 67(e)(1), we come to the application of the statute to the particular question in this case: whether investment advisory fees incurred by a trust escape the 2% floor. It is not uncommon or unusual for individuals to hire an investment adviser. Certainly the Trustee, who has the burden of establishing its entitlement to the deduction, has not demonstrated that it is. See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84, 112 S. Ct. 1039, 117 L. Ed. 2d 226 (1992) (noting the "`familiar rule' that `an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer'" (quoting Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593, 63 S. Ct. 1279, 87 L. Ed. 1607 (1943))); Tax Court Rule 142(a)(1) (stating that the "burden of proof shall be upon the petitioner," with certain exceptions not relevant here). The Trustee's argument is that individuals cannot incur trust investment advisory fees, not that individuals do not commonly incur investment advisory fees. Indeed, the essential point of the Trustee's argument is that he engaged an investment adviser because of his fiduciary duties under Connecticut's Uniform Prudent Investor Act, Conn. Gen.Stat. § 45a-541a(a) (2007). The Act eponymously requires trustees to follow the "prudent investor rule." See n. 2, supra. To satisfy this standard, a trustee must "invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust." § 45a-541b(a) (emphasis added). The prudent investor standard plainly does not refer to a prudent trustee; it would not be very helpful to explain that a trustee should act as a prudent trustee would. Rather, the standard looks to what a prudent investor with the same investment objectives handling his own affairs would do—i.e., a prudent individual investor. See Restatement (Third) of Trusts (Prudent Investor Rule) Reporter's Notes on § 227, p. 58 (1990) ("The prudent investor rule of this Section has its origins in the dictum of Harvard College v. Amory, 9 Pick. (26 Mass.) 446, 461 (1830), stating that trustees must `observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested'"). See also, e.g., In re Musser's Estate, 341 Pa. 1, 9-10, 17 A.2d 411, 415 (1941) (noting the "general rule" that "a trustee must exercise such prudence and diligence in conducting the affairs of the trust as men of average diligence and discretion would employ in their own affairs"). And we have no reason to doubt the Trustee's claim that a hypothetical prudent investor in his position would have solicited investment advice, just as he did. Having accepted all this, it is quite difficult to say that investment advisory fees "would not have been incurred"—that is, that it would be unusual or uncommon for such fees to have been incurred—if the property were held by an individual investor *791 with the same objectives as the Trust in handling his own affairs. We appreciate that the inquiry into what is common may not be as easy in other cases, particularly given the absence of regulatory guidance. But once you depart in the name of ease of administration from the language chosen by Congress, there is more than one way to skin the cat: The Trustee raises administrability concerns in support of his causation test, Reply Brief for Petitioner 6, but so does the Government in explaining why it prefers the Court of Appeals' approach to the one it has successfully advanced before the Tax Court and two Federal Circuits. Congress's decision to phrase the pertinent inquiry in terms of a prediction about a hypothetical situation inevitably entails some uncertainty, but that is no excuse for judicial amendment of the statute. The Code elsewhere poses similar questions— such as whether expenses are "ordinary," see §§ 162(a), 212; see also Deputy, Administratrix v. Du Pont, 308 U.S. 488, 495, 60 S. Ct. 363, 84 L. Ed. 416 (1940) (noting that "[o]rdinary has the connotation of normal, usual, or customary")—and the inquiry is in any event what § 67(e)(1) requires. As the Solicitor General concedes, some trust-related investment advisory fees may be fully deductible "if an investment advisor were to impose a special, additional charge applicable only to its fiduciary accounts." Brief for Respondent 25. There is nothing in the record, however, to suggest that Warfield charged the Trustee anything extra, or treated the Trust any differently than it would have treated an individual with similar objectives, because of the Trustee's fiduciary obligations. See App. 24-27. It is conceivable, moreover, that a trust may have an unusual investment objective, or may require a specialized balancing of the interests of various parties, such that a reasonable comparison with individual investors would be improper. In such a case, the incremental cost of expert advice beyond what would normally be required for the ordinary taxpayer would not be subject to the 2% floor. Here, however, the Trust has not asserted that its investment objective or its requisite balancing of competing interests was distinctive. Accordingly, we conclude that the investment advisory fees incurred by the Trust are subject to the 2% floor. The judgment of the Court of Appeals is affirmed. It is so ordered.

Under the Internal Revenue Code, individuals may subtract from their taxable income certain itemized deductions, but only to the extent the deductions exceed % of adjusted gross income. A trust may also claim those deductions, also subject to the % floor, except that costs incurred in the administration of the trust, which would not have been incurred if the trust property were not held by a trust, may be deducted without regard to the floor. In the case of individuals, investment advisory fees are subject to the % floor; the question presented is whether such fees are also subject to the floor when incurred by a trust. We hold that they are and therefore affirm the judgment below, albeit for different reasons than those given by the Court of Appeals. I The Internal Revenue Code imposes a tax on the "taxable income" of both individuals and trusts. (a). The Code instructs that the calculation of taxable income begins with a determination of "gross income," capaciously defined as "all income from whatever source derived." 61(a). "Adjusted gross income" is then calculated by subtracting from gross income certain "above-the-line" deductions, such as trade and business expenses and losses from the sale or exchange of property. 6(a). Finally, taxable income is calculated by subtracting from adjusted gross income "itemized deductions"—also known as "below-the-line" deductions—defined as all allowable deductions other than the "above-the-line" deductions identified in 6(a) and the deduction for personal exemptions allowed under 151 ( ed. and Supp. V). 63(d) ( ed.). Before the passage of the Tax Reform Act of 1986, below-the-line deductions were deductible in full. This system resulted in significant complexity and potential for abuse, requiring "extensive [taxpayer] recordkeeping with regard to what commonly are small expenditures," as well as "significant administrative and enforcement problems for the Internal Revenue Service." H.R.Rep. No. 99-46, p. 109 (1985). In response, Congress enacted what is known as the "% floor" by adding 67 to the Code. Section 67(a) provides that "the miscellaneous itemized deductions for any taxable year shall be allowed only to the extent that the aggregate of such deductions exceeds percent of adjusted gross income." The term "miscellaneous itemized deductions" is defined to include all itemized deductions other than certain ones specified in 67(b). Investment advisory fees are deductible pursuant to 6 U.S.C. 1. Because 1 is not listed in 67(b) as one of the categories of expenses that may be deducted in full, such fees are "miscellaneous itemized deductions" subject to the % floor. 6 CFR 1.67-1T(a)(1)(ii) Section 67(e) makes the % floor generally applicable not only to individuals but also to estates and trusts,[1] with one exception relevant here. Under this exception, "the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual, except that the deductions for costs which are paid or incurred in connection with the administration of the estate or trust and which would not have been incurred if the property were not held in such trust or *786 estate shall be treated as allowable" and not subject to the % floor. 67(e)(1). Petitioner Michael J. Knight is the trustee of the William L. Rudkin Testamentary Trust, established in the State of Connecticut in 1967. In the Trustee hired Warfield Associates, Inc., to provide advice with respect to investing the Trust's assets. At the beginning of the tax year, the Trust held approximately $.9 million in marketable securities, and it paid Warfield $,41 in investment advisory fees for the year. On its fiduciary income tax return for the Trust reported total income of $64,816, and it deducted in full the investment advisory fees paid to Warfield. After conducting an audit, respondent Commissioner of Internal Revenue found that these investment advisory fees were miscellaneous itemized deductions subject to the % floor. The Commissioner therefore allowed the Trust to deduct the investment advisory fees, which were the only claimed deductions subject to the floor, only to the extent that they exceeded % of the Trust's adjusted gross income. The discrepancy resulted in a tax deficiency of $4,448. The Trust filed a petition in the United States Tax Court seeking review of the assessed deficiency. It argued that the Trustee's fiduciary duty to act as a "prudent investor" under the Connecticut Uniform Prudent Investor Act, Conn. Gen. Stat. 45a-541a to 45a-541l[] required the Trustee to obtain investment advisory services, and therefore to pay investment advisory fees. The Trust argued that such fees are accordingly unique to trusts and therefore fully deductible under 6 U.S.C. 67(e)(1). The Tax Court rejected this argument, holding that 67(e)(1) allows full deductibility only for expenses that are not commonly incurred outside the trust setting. Because investment advisory fees are commonly incurred by individuals, the Tax Court held that they are subject to the % floor when incurred by a trust. Rudkin Testamentary WL 1503675 The Trust appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals concluded that, in determining whether costs such as investment advisory fees are fully deductible or subject to the % floor, 67(e) "directs the inquiry toward the counterfactual condition of assets held individually instead of in trust," and requires "an objective determination of whether the particular cost is one that is peculiar to trusts and one that individuals are incapable of incurring." The court held that because investment advisory fees were "costs of a type that could be incurred if the property were held individually rather than in trust," deduction of such fees by the Trust was subject to the % floor. The Courts of Appeals are divided on the question presented. The Sixth Circuit has held that investment advisory fees are fully deductible. In contrast, both the Fourth and Federal Circuits have held *787 that such fees are subject to the % floor, because they are "commonly" or "customarily" incurred outside of trusts. See ; Mellon (C.A.Fed.001). The Court of Appeals below came to the same conclusion, but as noted announced a more exacting test, allowing "full deduction only for those costs that could not have been incurred by an individual property owner." We granted the Trustee's petition for certiorari to resolve the conflict, 551 U.S. and now affirm. II "We start, as always, with the language of the statute." Section 67(e) sets forth a general rule: "[T]he adjusted gross income of [a] trust shall be computed in the same manner as in the case of an individual." That is, trusts can ordinarily deduct costs subject to the same % floor that applies to individuals' deductions. Section 67(e) provides for an exception to the % floor when two conditions are met. First, the relevant cost must be "paid or incurred in connection with the administration of the trust." 67(e)(1). Second, the cost must be one "which would not have been incurred if the property were not held in such trust." In applying the statute, the Court of Appeals below asked whether the cost at issue could have been incurred by an individual.[3] This approach flies in the face of the statutory language. The provision at issue asks whether the costs "would not have been incurred if the property were not held" in trust, ibid., not, as the Court of Appeals would have it, whether the costs "could not have been incurred" in such a case, The fact that an individual could not do something is one reason he would not, but not the only possible reason. If Congress had intended the Court of Appeals' reading, it easily could have replaced "would" in the statute with "could," and presumably would have. The fact that it did not adopt this readily available and apparent alternative strongly supports rejecting the Court of Appeals' reading.[4] *788 Moreover, if the Court of Appeals' reading were correct, it is not clear why Congress would have included in the statute the first clause of 67(e)(1). If the only costs that are fully deductible are those that could not be incurred outside the trust context—that is, that could only be incurred by trusts—then there would be no reason to place the further condition on full deductibility that the costs be "paid or incurred in connection with the administration of the trust," 67(e)(1). We can think of no expense that could be incurred exclusively by a trust but would nevertheless not be "paid or incurred in connection with" its administration. The Trustee argues that the exception in 67(e)(1) "establishes a straightforward causation test." Brief for Petitioner The proper inquiry, the Trustee contends, is "whether a particular expense of a particular trust or estate was caused by the fact that the property was held in the trust or estate." Investment advisory fees incurred by a trust, the argument goes, meet this test because these costs are caused by the trustee's obligation "to obtain advice on investing trust assets in compliance with the Trustees' particular fiduciary duties." We reject this reading as well. On the Trustee's view, the statute operates only to distinguish costs that are incurred by virtue of a trustee's fiduciary duties from those that are not. But all (or nearly all) of a trust's expenses are incurred because the trustee has a duty to incur them; otherwise, there would be no reason for the trust to incur the expense in the first place. See G. Bogert & G. Bogert, Law of Trusts and Trustees 801, p. 134 (d rev. ed. 1981) ("[T]he payment for expenses must be reasonably necessary to facilitate administration of the trust"). As an example of a type of trust-related expense that would be subject to the % floor, the Trustee offers "expenses for routine maintenance of real property" held by a trust. Brief for Petitioner 3. But such costs would appear to be fully deductible under the Trustee's own reading, because a trustee is obligated to incur maintenance expenses in light of the fiduciary duty to maintain trust property. See 1 Restatement (Second) of Trusts 176, p. 381 (1957) ("The trustee is under a duty to the beneficiary to use reasonable care and skill to preserve the trust property"). Indeed, the Trustee's formulation of its argument is circular: "Trust investment advice fees are caused by the fact the property is held in trust." Brief for Petitioner 19. But "trust investment advice fees" are only aptly described as such because the property is held in trust; the statute asks whether such costs would be incurred by an individual if the property were not. Even when there is a clearly analogous category of costs that would be incurred by individuals, the Trustee's reading would exempt most or all trust costs as fully deductible merely because they derive from a trustee's fiduciary duty. Adding the modifier "trust" to costs that otherwise would be incurred by an individual surely cannot be enough to escape the % floor. What is more, if the Trustee's position were correct, then only the first clause of 67(e)(1)—providing that the cost be "incurred in connection with the administration of the trust"—would be necessary. The statute's second, limiting condition— that the cost also be one "which would not have been incurred if the property were not held in such trust"—would do no work; *789 we see no difference in saying, on the one hand, that costs are "caused by" the fact that the property is held in trust and, on the other, that costs are incurred "in connection with the administration" of the trust. Thus, accepting the Trustee's approach "would render part of the statute entirely superfluous, something we are loath to do." Cooper Industries, The Trustee's reading is further undermined by our inclination, "[i]n construing provisions in which a general statement of policy is qualified by an exception, [to] read the exception narrowly in order to preserve the primary operation of the provision." As we have said, 67(e) sets forth a general rule for purposes of the % floor established in 67(a): "For purposes of this section, the adjusted gross income of an estate or trust shall be computed in the same manner as in the case of an individual." Under the Trustee's reading, 67(e)(1)'s exception would swallow the general rule; most (if not all) expenses incurred by a trust would be fully deductible. "Given that Congress has enacted a general rule, we should not eviscerate that legislative judgment through an expansive reading of a somewhat ambiguous exception." More to the point, the statute by its terms does not "establis[h] a straightforward causation test," Brief for Petitioner but rather invites a hypothetical inquiry into the treatment of the property were it held outside a trust. The statute does not ask whether a cost was incurred because the property is held by a trust; it asks whether a particular cost "would not have been incurred if the property were not held in such trust," 67(e)(1). "Far from examining the nature of the cost at issue from the perspective of whether it was caused by the trustee's duties, the statute instead looks to the counterfactual question of whether individuals would have incurred such costs in the absence of a trust." Brief for Respondent 9. This brings us to the test adopted by the Fourth and Federal Circuits: Costs incurred by trusts that escape the % floor are those that would not "commonly" or "customarily" be incurred by individuals. See 38 F.3d, at ; Mellon 65 F.3d, at ( 67(e) "treats as fully deductible only those trust-related administrative expenses that are unique to the administration of a trust and not customarily incurred outside of trusts"). The Solicitor General also accepts this view as an alternative reading of the statute. See Brief for Respondent 0-1. We agree with this approach. The question whether a trust-related expense is fully deductible turns on a prediction about what would happen if a fact were changed—specifically, if the property were held by an individual rather than by a trust. In the context of making such a prediction, when there is uncertainty about the answer, the word "would" is best read as "express[ing] concepts such as custom, habit, natural disposition, or probability." See Webster's Third New International Dictionary 637-638 ; American Heritage Dictionary 04, 059 (3d ed.1996). The Trustee objects that the statutory text "does not ask whether expenses are `customarily' incurred outside of trusts," Reply Brief for Petitioner 15, but that is the direct import of the language in context. The text requires determining what would happen if a fact were changed; such an exercise necessarily *790 entails a prediction; and predictions are based on what would customarily or commonly occur. Thus, in asking whether a particular type of cost "would not have been incurred" if the property were held by an individual, 67(e)(1) excepts from the % floor only those costs that it would be uncommon (or unusual, or unlikely) for such a hypothetical individual to incur. III Having decided on the proper reading of 67(e)(1), we come to the application of the statute to the particular question in this case: whether investment advisory fees incurred by a trust escape the % floor. It is not uncommon or unusual for individuals to hire an investment adviser. Certainly the Trustee, who has the burden of establishing its entitlement to the deduction, has not demonstrated that it is. See INDOPCO, )); Tax Court Rule 14(a)(1) (stating that the "burden of proof shall be upon the petitioner," with certain exceptions not relevant here). The Trustee's argument is that individuals cannot incur trust investment advisory fees, not that individuals do not commonly incur investment advisory fees. Indeed, the essential point of the Trustee's argument is that he engaged an investment adviser because of his fiduciary duties under Connecticut's Uniform Prudent Investor Act, Conn. Gen.Stat. 45a-541a(a) The Act eponymously requires trustees to follow the "prudent investor rule." See n. To satisfy this standard, a trustee must "invest and manage trust assets as a prudent investor would, by considering the purposes, terms, distribution requirements and other circumstances of the trust." 45a-541b(a) The prudent investor standard plainly does not refer to a prudent trustee; it would not be very helpful to explain that a trustee should act as a prudent trustee would. Rather, the standard looks to what a prudent investor with the same investment objectives handling his own affairs would do—i.e., a prudent individual investor. See Restatement (Third) of Trusts (Prudent Investor Rule) Reporter's Notes on 7, p. 58 (1990) ("The prudent investor rule of this Section has its origins in the dictum of Harvard College v. Amory, 9 Pick. (6 Mass.) 446, 461 (1830), stating that trustees must `observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested'"). See also, e.g., In re Musser's Estate, 17 A.d 411, And we have no reason to doubt the Trustee's claim that a hypothetical prudent investor in his position would have solicited investment advice, just as he did. Having accepted all this, it is quite difficult to say that investment advisory fees "would not have been incurred"—that is, that it would be unusual or uncommon for such fees to have been incurred—if the property were held by an individual investor *791 with the same objectives as the Trust in handling his own affairs. We appreciate that the inquiry into what is common may not be as easy in other cases, particularly given the absence of regulatory guidance. But once you depart in the name of ease of administration from the language chosen by Congress, there is more than one way to skin the cat: The Trustee raises administrability concerns in support of his causation test, Reply Brief for Petitioner 6, but so does the Government in explaining why it prefers the Court of Appeals' approach to the one it has successfully advanced before the Tax Court and two Federal Circuits. Congress's decision to phrase the pertinent inquiry in terms of a prediction about a hypothetical situation inevitably entails some uncertainty, but that is no excuse for judicial amendment of the statute. The Code elsewhere poses similar questions— such as whether expenses are "ordinary," see 16(a), 1; see also Deputy, L. Ed. 416 —and the inquiry is in any event what 67(e)(1) requires. As the Solicitor General concedes, some trust-related investment advisory fees may be fully deductible "if an investment advisor were to impose a special, additional charge applicable only to its fiduciary accounts." Brief for Respondent 5. There is nothing in the record, however, to suggest that Warfield charged the Trustee anything extra, or treated the Trust any differently than it would have treated an individual with similar objectives, because of the Trustee's fiduciary obligations. See App. 4-7. It is conceivable, moreover, that a trust may have an unusual investment objective, or may require a specialized balancing of the interests of various parties, such that a reasonable comparison with individual investors would be improper. In such a case, the incremental cost of expert advice beyond what would normally be required for the ordinary taxpayer would not be subject to the % floor. Here, however, the Trust has not asserted that its investment objective or its requisite balancing of competing interests was distinctive. Accordingly, we conclude that the investment advisory fees incurred by the Trust are subject to the % floor. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Stevens

majority

De Buono v. NYSA-ILA Medical and Clinical Services Fund

1997-06-02

https://www.courtlistener.com/opinion/118119/de-buono-v-nysa-ila-medical-and-clinical-services-fund/

https://www.courtlistener.com/api/rest/v3/clusters/118119/

1996-063

This is another Employee Retirement Income Security Act of 1974 (ERISA) pre-emption case.[1] Broadly stated, the *809 question presented is whether hospitals operated by ERISA plans are subject to the same laws as other hospitals. More precisely, the question is whether the opaque language in ERISA's § 514(a)[2] precludes New York from imposing a gross receipts tax on the income of medical centers operated by ERISA funds. We hold that New York may collect its tax. I In 1990, faced with the choice of either curtailing its Medicaid program or generating additional revenue to reduce the program deficit, the New York General Assembly enacted the Health Facility Assessment (HFA).[3] The HFA imposes a tax on gross receipts for patient services at hospitals, residential health care facilities, and diagnostic and treatment *810 centers.[4] The assessments become a part of the State's general revenues. Respondents are the trustees of the NYSA—ILA Medical and Clinical Services Fund (Fund), which administers a self-insured, multiemployer welfare benefit plan. The Fund owns and operates three medical centers—two in New York and one in New Jersey—that provide medical, dental, and other health care benefits primarily to longshore workers, retirees, and their dependents. The New York centers are licensed by the State as "diagnostic and treatment centers," App. 80, and are thus subject to a 0.6 percent tax on gross receipts under the HFA. N. Y. Pub. Health Law § 2807— d(2)(c) (McKinney 1993). During the period from January through November of 1991, respondents paid HFA assessments totaling $7,066 based on the two New York hospitals' patient care income of $1,177,670. At that time, they discontinued the payments and brought this action against appropriate state officials (petitioners) to enjoin future assessments and to obtain a refund of the tax paid in 1991. The complaint alleged that the HFA is a state law that "relates to" the Fund within the meaning of § 514(a) of ERISA, and is therefore pre-empted as applied to hospitals run by ERISA plans. The District Court denied relief. It concluded that HFA was not pre-empted because it was a "tax of general application" that did not "interfere with the calculation of benefits or the determination of an employee's eligibility for benefits" and thus had only an incidental impact on benefit plans. App. to Pet. for Cert. 21a.[5] *811 The Court of Appeals for the Second Circuit reversed. It distinguished cases in which we had found that certain "laws of general application" were not pre-empted by ERISA,[6] explaining that the HFA "targets only the health care industry," which is, "by definition, the realm where ERISA welfare plans must operate," NYSA—ILA Medical and Clinical Services Fund v. Axelrod, M. D., 27 F.3d 823, 827 (1994). The court reasoned that because the HFA "operates as an immediate tax on payments and contributions which were intended to pay for participants' medical benefits," it directly affects "the very operations and functions that make the Fund what it is, a provider of medical, surgical, and hospital *812 care to its participants and their beneficiaries." Ibid. The HFA, concluded the court, thus "related to" the Fund because it reduced the amount of Fund assets that would otherwise be available to provide plan members with benefits, and could cause the plan to limit its benefits, or to charge plan members higher fees. The first petition for certiorari in this case was filed before we handed down our opinion in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995). In that case we held that ERISA did not pre-empt a New York statute that required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan. Id., at 649-651. After deciding Travelers, we vacated the judgment of the Court of Appeals inthis case and remanded for further consideration in light of that opinion. 514 U.S. 1094 (1995). On remand the Court of Appeals reinstated its original judgment. The court distinguished the statute involved in Travelers on the ground that—by imposing a tax on the health insurance carriers who provided coverage to plans and their beneficiaries—it had only an indirect economic influence on the decisions of ERISA plan administrators, whereas the HFA "depletes the Fund's assets directly, and thus has an immediate impact on the operations of an ERISA plan," NYSA—ILA Medical and Clinical Services Fund v. Axelrod, M. D., 74 F.3d 28, 30 (1996). We granted the New York officials' second petition for certiorari, 519 U.S. 926 (1996), and now reverse. II When the Second Circuit initially found the HFA preempted as applied to Fund-operated hospitals, that court relied substantially on an expansive and literal interpretation of the words "relate to" in § 514(a) of ERISA. 27 F.3d, at 826. In reconsidering the case on remand, the court appears to have adhered to that approach, failing to give proper *813 weight to Travelers ` rejection of a strictly literal reading of § 514(a). In Travelers, as in our earlier cases, we noted that the literal text of § 514(a) is "clearly expansive." 514 U.S., at 655. But we were quite clear in that case that the text could not be read to "extend to the furthest stretch of its indeterminacy, [or] for all practical purposes pre-emption would never run its course, for `[r]eally, universally, relations stop nowhere,' H. James, Roderick Hudson xli (New York ed., World's Classics 1980)." Ibid.[7] In our earlier ERISA pre-emption cases, it had not been necessary to rely on the expansive character of ERISA's literal language in order to find pre-emption because the state laws at issue in those cases had a clear "connection with or reference to," Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983), ERISA benefit plans. But in Travelers we confronted directly the question whether ERISA's "relates to" language was intended to modify "the starting presumption that Congress does not intend to supplant state law." 514 U.S., at 654.[8] We unequivocally concluded that it did not, and we acknowledged "that our prior attempt[s] to construe the phrase `relate to' d[o] not give us much help drawing the line here." Id. , at 655. In order to evaluate whether the normal presumption against pre-emption has been overcome in a particular case, we concluded that we "must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives *814 of the ERISA statute as a guide to the scope of the state law that Congress understood would survive." Id., at 656. We endorsed that approach once again earlier this Term in concluding that California's prevailing wage law was not pre-empted by ERISA. California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U.S. 316, 325 (1997).[9] Following that approach here, we begin by noting that the historic police powers of the State include the regulation of matters of health and safety. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985). While the HFA is a revenue raising measure, rather than a regulation of hospitals, it clearly operates in a field that "`has been traditionally occupied by the States.' " Ibid. (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)).[10] Respondents therefore bear the considerable burden of overcoming "the starting presumption that Congress does not intend to supplant state law." Travelers, 514 U. S., at 654. There is nothing in the operation of the HFA that convinces us it is the type of state law that Congress intended ERISA to supersede.[11] This is not a case in which New *815 York has forbidden a method of calculating pension benefits that federal law permits,[12] or required employers to provide certain benefits.[13] Nor is it a case in which the existence of a pension plan is a critical element of a state-law cause of action,[14] or one in which the state statute contains provisions that expressly refer to ERISA or ERISA plans.[15] A consideration of the actual operation of the state statute leads us to the conclusion that the HFA is one of "myriad state laws" of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not "relate to" them within the meaning of the governing statute. See Travelers, 514 U. S., at 668; Dillingham *816 Constr., 519 U. S., at 333-334. The HFA is a tax on hospitals. Most hospitals are not owned or operated by ERISA funds. This particular ERISA fund has arranged to provide medical benefits for its plan beneficiaries by running hospitals directly, rather than by purchasing the same services at independently run hospitals. If the Fund had made the other choice, and had purchased health care services from a hospital, that facility would have passed the expense of the HFA onto the Fund and its plan beneficiaries through the rates it set for the services provided. The Fund would then have had to decide whether to cover a more limited range of services for its beneficiaries, or perhaps to charge plan members higher rates. Although the tax in such a circumstance would be "indirect," its impact on the Fund's decisions would be in all relevant respects identical to the "direct" impact felt here. Thus, the supposed difference between direct and indirect impact—upon which the Court of Appeals relied in distinguishing this case from Travelers —cannot withstand scrutiny. Any state tax, or other law, that increases the cost of providing benefits to covered employees will have some effect on the administration of ERISA plans, but that simply cannot mean that every state law with such an effect is preempted by the federal statute.[16] The judgment of the Court of Appeals is reversed. It is so ordered.

This is another Employee Retirement Income Security Act of 1974 (ERISA) pre-emption case.[1] Broadly stated, the *809 question presented is whether hospitals operated by ERISA plans are subject to the same laws as other hospitals. More precisely, the question is whether the opaque language in ERISA's 514(a)[2] precludes New York from imposing a gross receipts tax on the income of medical centers operated by ERISA funds. We hold that New York may collect its tax. I In 1990, faced with the choice of either curtailing its Medicaid program or generating additional revenue to reduce the program deficit, the New York General Assembly enacted the Health Facility Assessment (HFA).[3] The HFA imposes a tax on gross receipts for patient services at hospitals, residential health care facilities, and diagnostic and treatment *810 centers.[4] The assessments become a part of the State's general revenues. Respondents are the trustees of the NYSA—ILA Medical and Clinical Services Fund (Fund), which administers a self-insured, multiemployer welfare benefit plan. The Fund owns and operates three medical centers—two in New York and one in New Jersey—that provide medical, dental, and other health care benefits primarily to longshore workers, retirees, and their dependents. The New York centers are licensed by the State as "diagnostic and treatment centers," App. 80, and are thus subject to a 0.6 percent tax on gross receipts under the HFA. N. Y. Pub. Health Law 2807— d(2)(c) (McKinney 1993). During the period from January through November of 1991, respondents paid HFA assessments totaling $7,066 based on the two New York hospitals' patient care income of $1,177,670. At that time, they discontinued the payments and brought this action against appropriate state officials (petitioners) to enjoin future assessments and to obtain a refund of the tax paid in 1991. The complaint alleged that the HFA is a state law that "relates to" the Fund within the meaning of 514(a) of ERISA, and is therefore pre-empted as applied to hospitals run by ERISA plans. The District Court denied relief. It concluded that HFA was not pre-empted because it was a "tax of general application" that did not "interfere with the calculation of benefits or the determination of an employee's eligibility for benefits" and thus had only an incidental impact on benefit plans. App. to Pet. for Cert. 21a.[5] *811 The Court of Appeals for the Second Circuit reversed. It distinguished cases in which we had found that certain "laws of general application" were not pre-empted by ERISA,[6] explaining that the HFA "targets only the health care industry," which is, "by definition, the realm where ERISA welfare plans must operate," NYSA—ILA Medical and Clinical Services The court reasoned that because the HFA "operates as an immediate tax on payments and contributions which were intended to pay for participants' medical benefits," it directly affects "the very operations and functions that make the Fund what it is, a provider of medical, surgical, and hospital *812 care to its participants and their beneficiaries." The HFA, concluded the court, thus "related to" the Fund because it reduced the amount of Fund assets that would otherwise be available to provide plan members with benefits, and could cause the plan to limit its benefits, or to charge plan members higher fees. The first petition for certiorari in this case was filed before we handed down our opinion in New York State Conference of Blue Cross & Blue Shield In that case we held that ERISA did not pre-empt a New York statute that required hospitals to collect surcharges from patients covered by a commercial insurer but not from patients insured by a Blue Cross/Blue Shield plan. After deciding we vacated the judgment of the Court of Appeals inthis case and remanded for further consideration in light of that opinion. On remand the Court of Appeals reinstated its original judgment. The court distinguished the statute involved in on the ground that—by imposing a tax on the health insurance carriers who provided coverage to plans and their beneficiaries—it had only an indirect economic influence on the decisions of ERISA plan administrators, whereas the HFA "depletes the Fund's assets directly, and thus has an immediate impact on the operations of an ERISA plan," NYSA—ILA Medical and Clinical Services We granted the New York officials' second petition for certiorari, and now reverse. II When the Second Circuit initially found the HFA preempted as applied to Fund-operated hospitals, that court relied substantially on an expansive and literal interpretation of the words "relate to" in 514(a) of In reconsidering the case on remand, the court appears to have adhered to that approach, failing to give proper *813 weight to ` rejection of a strictly literal reading of 514(a). In as in our earlier cases, we noted that the literal text of 514(a) is "clearly expansive." But we were quite clear in that case that the text could not be read to "extend to the furthest stretch of its indeterminacy, [or] for all practical purposes pre-emption would never run its course, for `[r]eally, universally, relations stop nowhere,' H. James, Roderick Hudson xli (New York ed., World's Classics 1980)." [7] In our earlier ERISA pre-emption cases, it had not been necessary to rely on the expansive character of ERISA's literal language in order to find pre-emption because the state laws at issue in those cases had a clear "connection with or reference to," ERISA benefit plans. But in we confronted directly the question whether ERISA's "relates to" language was intended to modify "the starting presumption that Congress does not intend to supplant state law."[8] We unequivocally concluded that it did not, and we acknowledged "that our prior attempt[s] to construe the phrase `relate to' d[o] not give us much help drawing the line here." at 655. In order to evaluate whether the normal presumption against pre-emption has been overcome in a particular case, we concluded that we "must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives *814 of the ERISA statute as a guide to the scope of the state law that Congress understood would survive." We endorsed that approach once again earlier this Term in concluding that California's prevailing wage law was not pre-empted by California Div. of Labor Standards[9] Following that approach here, we begin by noting that the historic police powers of the State include the regulation of matters of health and safety. Hillsborough While the HFA is a revenue raising measure, rather than a regulation of hospitals, it clearly operates in a field that "`has been traditionally occupied by the States.' " ).[10] Respondents therefore bear the considerable burden of overcoming "the starting presumption that Congress does not intend to supplant state law." There is nothing in the operation of the HFA that convinces us it is the type of state law that Congress intended ERISA to supersede.[11] This is not a case in which New *815 York has forbidden a method of calculating pension benefits that federal law permits,[12] or required employers to provide certain benefits.[13] Nor is it a case in which the existence of a pension plan is a critical element of a state-law cause of action,[14] or one in which the state statute contains provisions that expressly refer to ERISA or ERISA plans.[15] A consideration of the actual operation of the state statute leads us to the conclusion that the HFA is one of "myriad state laws" of general applicability that impose some burdens on the administration of ERISA plans but nevertheless do not "relate to" them within the meaning of the governing statute. See ; Dillingham *816 -334. The HFA is a tax on hospitals. Most hospitals are not owned or operated by ERISA funds. This particular ERISA fund has arranged to provide medical benefits for its plan beneficiaries by running hospitals directly, rather than by purchasing the same services at independently run hospitals. If the Fund had made the other choice, and had purchased health care services from a hospital, that facility would have passed the expense of the HFA onto the Fund and its plan beneficiaries through the rates it set for the services provided. The Fund would then have had to decide whether to cover a more limited range of services for its beneficiaries, or perhaps to charge plan members higher rates. Although the tax in such a circumstance would be "indirect," its impact on the Fund's decisions would be in all relevant respects identical to the "direct" impact felt here. Thus, the supposed difference between direct and indirect impact—upon which the Court of Appeals relied in distinguishing this case from —cannot withstand scrutiny. Any state tax, or other law, that increases the cost of providing benefits to covered employees will have some effect on the administration of ERISA plans, but that simply cannot mean that every state law with such an effect is preempted by the federal statute.[16] The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Scalia

dissenting

De Buono v. NYSA-ILA Medical and Clinical Services Fund

1997-06-02

https://www.courtlistener.com/opinion/118119/de-buono-v-nysa-ila-medical-and-clinical-services-fund/

https://www.courtlistener.com/api/rest/v3/clusters/118119/

1996-063

"[I]t is the duty of this court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by *817 statute, is not exceeded." Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908). Despite our obligation to examine federal-court jurisdiction even if the issue is not raised by either party, ibid., and despite the Court's explicit acknowledgment, ante, at 810-811, n. 5, of the possibility that jurisdiction over this case is barred by the Tax Injunction Act, 28 U.S. C. § 1341, the Court proceeds to decide the merits of respondents' Employee Retirement Income Security Act of 1974 (ERISA) pre-emption challenge. The Court offers two grounds for passing over the threshold question of jurisdiction: our "settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," and petitioners' "active participation in nearly four years of federal litigation with no complaint about federal jurisdiction." Ante, at 811, n. 5. In my view, neither of these factors justifies our proceeding without resolving the issue of jurisdiction. The Tax Injunction Act bars federal-court jurisdiction over an action seeking to enjoin a state tax (such as the one at issue here) where "a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S. C. § 1341; see Arkansas v. Farm Credit Servs. of Central Ark., post, at 825 (describing the Act as a "jurisdictional rule" and "broad jurisdictional barrier"). The District Court in this case suggested that the Tax Injunction Act might not bar jurisdiction here, since New York courts might not afford respondents a "plain" remedy within the meaning of the Act. See NYSA— ILA Medical and Clinical Services Fund v. Axelrod, No. 92 Civ. 2779 (SDNY, Feb. 18, 1993), App. to Pet. for Cert. 19a. That suggestion was not, however, based upon the District Court's resolution of any "issues of state law," as today's opinion intimates, ante, at 811, n. 5; rather, it rested upon the District Court's conclusion that uncertainty over the implications of a federal statute—§ 502(e)(1) of ERISA, 29 U.S. C. § 1132(e)(1)—might render the availability of a statecourt *818 remedy not "plain." App. to Pet. for Cert. 19a.[*] The Court of Appeals, in turn, made no mention of the jurisdictional issue, presumably because, under controlling Circuit precedent, jurisdiction was secure: The Second Circuit had previously held that state courts could not provide any remedy for ERISA-based challenges to state taxes within the meaning of the Tax Injunction Act, since "Congress has divested the state courts of jurisdiction" over ERISA claims. Travelers Ins. Co. v. Cuomo, 14 F.3d 708, 714 (1993) (citing ERISA § 502(e)(1), 29 U.S. C. § 1132(e)(1)), rev'd on other grounds sub nom. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995). That holding (like the District Court's discussion of the issue in this case) in no way turns on New York state law, so I am at a loss to understand the Court's invocation *819 of "our settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," ante, at 811, n. 5, as a basis for overlooking the question whether the Tax Injunction Act bars federal-court jurisdiction. The second factor relied upon by the Court in support of its treatment of the jurisdictional issue is that petitioners dropped the issue after the District Court failed to adopt their interpretation of the Tax Injunction Act. But the fact that petitioners have "active[ly] participat[ed] in nearly four years of federal litigation with no complaint about federal jurisdiction," ibid., cannot possibly confer upon us jurisdiction that we do not otherwise possess. It is our duty to resolve the jurisdictional question, whether or not it has been preserved by the parties. Sumner v. Mata, 449 U.S. 539, 548, n. 2 (1981); Louisville & Nashville R. Co., supra, at 152. In Sumner we confronted the identical circumstance presented here—a jurisdictional argument raised before the District Court but abandoned before the Court of Appeals— and felt the need to address the jurisdictional issue. 449 U.S., at 547, n. 2. I have previously noted the split among the Circuits on the question whether the Tax Injunction Act deprives federal courts of jurisdiction over ERISA-based challenges to state taxes. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U.S. 1301, 1302-1303 (1991) (Scalia, J., in chambers). In a prior case, we expressly left the question open, saying that "[w]e express no opinion [on] whether a party [can] sue under ERISA to enjoin or to declare invalid a state tax levy, despite the Tax Injunction Act"; we noted that the answer would depend on whether "state law provide[s] no `speedy and efficient remedy' " and on whether "Congress intended § 502 of ERISA to be an exception to the Tax Injunction Act." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 20, n. 21 (1983). Because I am *820 uncertain of the federal courts' jurisdiction over this case, I would set the jurisdictional issue for briefing and argument, and would resolve that issue before reaching the merits of respondents' ERISA pre-emption claim. Accordingly, I respectfully dissent from today's opinion.

"[I]t is the duty of this court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by *817 statute, is not exceeded." Louisville & Nashville R. Despite our obligation to examine federal-court jurisdiction even if the issue is not raised by either party, ibid., and despite the Court's explicit acknowledgment, ante, at 810-811, n. 5, of the possibility that jurisdiction over this case is barred by the Tax Injunction Act, 28 U.S. C. 1341, the Court proceeds to decide the merits of respondents' Employee Retirement Income Security Act of 1974 (ERISA) pre-emption challenge. The Court offers two grounds for passing over the threshold question of jurisdiction: our "settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," and petitioners' "active participation in nearly four years of federal litigation with no complaint about federal jurisdiction." Ante, at 811, n. 5. In my view, neither of these factors justifies our proceeding without resolving the issue of jurisdiction. The Tax Injunction Act bars federal-court jurisdiction over an action seeking to enjoin a state tax (such as the one at issue here) where "a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S. C. 1341; see Arkansas v. Farm Credit Servs. of Central Ark., post, at 825 (describing the Act as a "jurisdictional rule" and "broad jurisdictional barrier"). The District Court in this case suggested that the Tax Injunction Act might not bar jurisdiction here, since New York courts might not afford respondents a "plain" remedy within the meaning of the Act. See NYSA— ILA Medical and Clinical Services Fund v. Axelrod, No. 92 Civ. 2779 App. to Pet. for Cert. 19a. That suggestion was not, however, based upon the District Court's resolution of any "issues of state law," as today's opinion intimates, ante, at 811, n. 5; rather, it rested upon the District Court's conclusion that uncertainty over the implications of a federal statute— 502(e)(1) of ERISA, 29 U.S. C. 1132(e)(1)—might render the availability of a statecourt *818 remedy not "plain." App. to Pet. for Cert. 19a.[*] The Court of Appeals, in turn, made no mention of the jurisdictional issue, presumably because, under controlling Circuit precedent, jurisdiction was secure: The Second Circuit had previously held that state courts could not provide any remedy for ERISA-based challenges to state taxes within the meaning of the Tax Injunction Act, since "Congress has divested the state courts of jurisdiction" over ERISA claims. Travelers Ins. (citing ERISA 502(e)(1), 29 U.S. C. 1132(e)(1)), rev'd on other grounds sub nom. New York State Conference of Blue Cross & Blue Shield That holding (like the District Court's discussion of the issue in this case) in no way turns on New York state law, so I am at a loss to understand the Court's invocation *819 of "our settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," ante, at 811, n. 5, as a basis for overlooking the question whether the Tax Injunction Act bars federal-court jurisdiction. The second factor relied upon by the Court in support of its treatment of the jurisdictional issue is that petitioners dropped the issue after the District Court failed to adopt their interpretation of the Tax Injunction Act. But the fact that petitioners have "active[ly] participat[ed] in nearly four years of federal litigation with no complaint about federal jurisdiction," ibid., cannot possibly confer upon us jurisdiction that we do not otherwise possess. It is our duty to resolve the jurisdictional question, whether or not it has been preserved by the parties. ; Louisville & Nashville R. at In Sumner we confronted the identical circumstance presented here—a jurisdictional argument raised before the District Court but abandoned before the Court of Appeals— and felt the need to address the jurisdictional n. 2. I have previously noted the split among the Circuits on the question whether the Tax Injunction Act deprives federal courts of jurisdiction over ERISA-based challenges to state taxes. See In a prior case, we expressly left the question open, saying that "[w]e express no opinion [on] whether a party [can] sue under ERISA to enjoin or to declare invalid a state tax levy, despite the Tax Injunction Act"; we noted that the answer would depend on whether "state law provide[s] no `speedy and efficient remedy' " and on whether "Congress intended 502 of ERISA to be an exception to the Tax Injunction Act." Franchise Tax Bd. of Because I am *820 uncertain of the federal courts' jurisdiction over this case, I would set the jurisdictional issue for briefing and argument, and would resolve that issue before reaching the merits of respondents' ERISA pre-emption claim. Accordingly, I respectfully dissent from today's opinion.

Justice Sotomayor

majority

Salazar v. Ramah Navajo Chapter

2012-06-18

https://www.courtlistener.com/opinion/802399/salazar-v-ramah-navajo-chapter/

https://www.courtlistener.com/api/rest/v3/clusters/802399/

2011-066

The Indian Self-Determination and Education Assis- tance Act (ISDA), 25 U.S. C. §450 et seq., directs the Secretary of the Interior to enter into contracts with will- ing tribes, pursuant to which those tribes will provide services such as education and law enforcement that otherwise would have been provided by the Federal Gov- ernment. ISDA mandates that the Secretary shall pay the full amount of “contract support costs” incurred by tribes in performing their contracts. At issue in this case is whether the Government must pay those costs when Congress appropriates sufficient funds to pay in full any individual contractor’s contract support costs, but not enough funds to cover the aggregate amount due every contractor. Consistent with longstanding principles of Government contracting law, we hold that the Govern- ment must pay each tribe’s contract support costs in full. I A Congress enacted ISDA in 1975 in order to achieve 2 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court “maximum Indian participation in the direction of educa- tional as well as other Federal services to Indian commu- nities so as to render such services more responsive to the needs and desires of those communities.” 25 U.S. C. §450a(a). To that end, the Act directs the Secretary of the Interior, “upon the request of any Indian tribe . . . to enter into a self-determination contract . . . to plan, conduct, and administer” health, education, economic, and social pro- grams that the Secretary otherwise would have adminis- tered. §450f(a)(1). As originally enacted, ISDA required the Government to provide contracting tribes with an amount of funds equiv- alent to those that the Secretary “would have other- wise provided for his direct operation of the programs.” §106(h), 88 Stat. 2211. It soon became apparent that this secretarial amount failed to account for the full costs to tribes of providing services. Because of “concern with Government’s past failure adequately to reimburse tribes’ indirect administrative costs,” Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 639 (2005), Congress amended ISDA to require the Secretary to contract to pay the “full amount” of “contract support costs” related to each self- determination contract, §§450j–1(a)(2), (g).1 The Act also provides, however, that “[n]otwithstanding any other provision in [ISDA], the provision of funds under [ISDA] is subject to the availability of appropriations.” §450j–1(b). Congress included a model contract in ISDA and di- —————— 1 As defined by ISDA, contract support costs “shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which . . . (A) normally are not carried on by the respective Secretary in his direct operation of the program; or (B) are provided by the Secretary in support of the contracted program from resources other than those under contract.” §450j–1(a)(2). Such costs include overhead adminis- trative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla., 543 U. S., at 635. Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court rected that each tribal self-determination contract “shall . . . contain, or incorporate [it] by reference.” §450l(a)(1). The model contract specifies that “ ‘[s]ubject to the availa- bility of appropriations, the Secretary shall make avail- able to the Contractor the total amount specified in the annual funding agreement’ ” between the Secretary and the tribe. §450l(c), (model agreement §1(b)(4)). That amount “ ‘shall not be less than the applicable amount determined pursuant to [§450j–1(a)],’ ” which includes contract support costs. Ibid.; §450j–1(a)(2). The contract indicates that “ ‘[e]ach provision of [ISDA] and each provi- sion of this Contract shall be liberally construed for the benefit of the Contractor . . . .’ ” §450l(c), (model agree- ment §1(a)(2)). Finally, the Act makes clear that if the Government fails to pay the amount contracted for, then tribal contractors are entitled to pursue “money dam- ages” in accordance with the Contract Disputes Act. §450m–1(a). B During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e.g., Department of the Interior and Related Agencies Appropriations Act, 2000, 113 Stat. 1501A–148. Of that sum, Congress pro- vided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organiza- tions for contract support costs” under ISDA. E.g., ibid. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. Ibid. 4 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court During each relevant FY, Congress appropriated suffi- cient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appro- priate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FY 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The ex- tent of the shortfall was not revealed until each fiscal year was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F.3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes re- sponded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in fur- therance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3–4 (GAO/RCED–99–150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U.S. C. §§601–613, alleg- ing that the Government failed to pay the full amount of contract support costs due from FY 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Cir- cuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was there- fore binding. 644 F. 3d, at 1063–1065. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U. S. ___ (2012), and now affirm.2 II A In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation, we also con- sidered the Government’s promise to pay contract sup- port costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.” 543 U. S., at 634–637. For each FY at issue, Congress had appropriated to the Indian Health Service (IHS) a lump sum between $1.277 and $1.419 billion, “far more than the [contract support cost] amounts” due under the Tribes’ individual contracts. Id., at 637; see id., at 636 (Cherokee Nation and Shoshone- Paiute Tribes filed claims seeking $3.4 and $3.5 million, respectively). The Government contended, however, that Congress had appropriated inadequate funds to enable the IHS to pay the Tribes’ contract support costs in full, while meeting all of the agency’s competing fiscal priorities. As we explained, that did not excuse the Government’s responsibility to pay the Tribes. We stressed that the Government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting that ISDA “uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.” Id., at 639. As even the Government conceded, “in the case of ordinary contracts . . . ‘if the amount of an unrestricted appropria- tion is sufficient to fund the contract, the contractor is —————— 2 Compare 644 F.3d 1054 (case below), with Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F.3d 1296 (CA Fed. 2010) (no liability to pay total contract support costs beyond cap in appropriations Act). 6 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds.’ ” Id., at 641. It followed, there- fore, that absent “something special about the promises at issue,” the Government was obligated to pay the Tribes’ contract support costs in full. Id., at 638. We held that the mere fact that ISDA self-determination contracts are made “subject to the availability of appropri- ations” did not warrant a special rule. Id., at 643 (internal quotation marks omitted). That commonplace provision, we explained, is ordinarily satisfied so long as Congress appropriates adequate legally unrestricted funds to pay the contracts at issue. See ibid. Because Congress made sufficient funds legally available to the agency to pay the Tribes’ contracts, it did not matter that the BIA had allo- cated some of those funds to serve other purposes, such that the remainder was insufficient to pay the Tribes in full. Rather, we agreed with the Tribes that “as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue,” the Government’s promise to pay was binding. Id., at 637–638. Our conclusion in Cherokee Nation followed directly from well-established principles of Government contract- ing law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that the Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible ends. See Ferris v. United States, 27 Ct. Cl. 542, 546 (1892); Dougherty v. United States, 18 Ct. Cl. 496, 503 (1883); see also 2 GAO, Principles of Federal Appropria- tions Law, p. 6–17 (2d ed. 1992) (hereinafter GAO Redbook).3 That is so “even if an agency’s total lump-sum —————— 3 In Ferris, for instance, Congress appropriated $45,000 for the im- Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. In such cases, “[t]he United States are as much bound by their contracts as are individuals.” Lynch v. United States, 292 U.S. 571, 580 (1934) (internal quotation marks omitted). Although the agency itself cannot dis- burse funds beyond those appropriated to it, the Govern- ment’s “valid obligations will remain enforceable in the courts.” GAO Redbook, p. 6–17. This principle safeguards both the expectations of Gov- ernment contractors and the long-term fiscal interests of the United States. For contractors, the Ferris rule reflects that when “a contract is but one activity under a larger appropriation, it is not reasonable to expect the contractor to know how much of that appropriation remains available for it at any given time.” GAO Redbook, p. 6–18. Contrac- tors are responsible for knowing the size of the pie, not how the agency elects to slice it. Thus, so long as Con- gress appropriates adequate funds to cover a prospective contract, contractors need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its contractual promises. Dougherty, 18 Ct. Cl., at 503. In such cases, if —————— provement of the Delaware River below Bridesburg, Pennsylvania. Act of Mar. 3, 1879, ch. 181, 20 Stat. 364. The Government contracted with Ferris for $37,000 to dredge the river. Halfway through Ferris’ perfor- mance of his contract, the United States Army Corps of Engineers ran out of money to pay Ferris, having used $17,000 of the appropriation to pay for other improvements. Nonetheless, the Court of Claims found that Ferris could recover for the balance of his contract. As the court explained, the appropriation “merely impose[d] limitations upon the Government’s own agents; . . . its insufficiency [did] not pay the Gov- ernment’s debts, nor cancel its obligations, nor defeat the rights of other parties.” 27 Ct. Cl., at 546; see also Dougherty, 18 Ct. Cl., at 503 (rejecting Government’s argument that a contractor could not recover upon similar facts because the “appropriation had, at the time of the purchase, been covered by other contracts”). 8 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court an agency overcommits its funds such that it cannot fulfill its contractual commitments, even the Government has acknowledged that “[t]he risk of over-obligation may be found to fall on the agency,” not the contractor. Brief for Federal Parties in Cherokee Nation v. Leavitt, O. T. 2004, No. 02–1472 et al., p. 24 (hereinafter Brief for Federal Parties). The rule likewise furthers “the Government’s own long- run interest as a reliable contracting partner in the myr- iad workaday transaction of its agencies.” United States v. Winstar Corp., 518 U.S. 839, 883 (1996) (plurality opin- ion). If the Government could be trusted to fulfill its promise to pay only when more pressing fiscal needs did not arise, would-be contractors would bargain warily—if at all—and only at a premium large enough to account for the risk of nonpayment. See, e.g., Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Govern- ment Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996). In short, contracting would become more cumbersome and expensive for the Government, and willing partners more scarce. B The principles underlying Cherokee Nation and Ferris dictate the result in this case. Once “Congress has appro- priated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of ‘insufficient appro- priations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637; see also id., at 638 (“[T]he Gov- ernment denies none of this”). That condition is satisfied here. In each FY between 1994 and 2001, Congress appropriated to the BIA a lump- Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court sum from which “not to exceed” between $91 and $125 million was allocated for contract support costs, an amount that exceeded the sum due any tribal contractor. Within those constraints, the ability to direct those funds was “ ‘committed to agency discretion by law.’ ” Lincoln v. Vigil, 508 U.S. 182, 193 (1993) (quoting 5 U.S. C. §701(a)(2)). Nothing, for instance, prevented the BIA from paying in full respondent Ramah Navajo Chapter’s contract support costs rather than other tribes’, whether based on its greater need or simply because it sought payment first.4 See International Union, United Auto., Aerospace & Agricultural Implement Workers of Am. v. Donovan, 746 F.2d 855, 861 (CADC 1984) (Scalia, J.) (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). And if there was any doubt that that general rule applied here, ISDA’s statutory language itself makes clear that the BIA may allocate funds to one tribe at the expense of another. See §450j–1(b) (“[T]he Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal or- ganization under this [Act]”). The upshot is that the funds appropriated by Congress were legally available to pay any individual tribal contractor in full. See 1 GAO Redbook, p. 4–6 (3d ed. 2004). The Government’s contractual promise to pay each tribal contractor the “full amount of funds to which the contractor [was] entitled,” §450j–1(g), was therefore bind- ing. We have expressly rejected the Government’s argu- ment that “the tribe should bear the risk that a total —————— 4 Indeed,the Indian Health Service once allocated its appropriations for new ISDA contracts on a first-come, first-serve basis. See Dept. of Health and Human Services, Indian Self-Determination Memorandum No. 92–2, p. 4 (Feb. 27, 1992). 10 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Cherokee Nation, 543 U. S., at 638. Rather, the tribal contractors were entitled to rely on the Govern- ment’s promise to pay because they were “not chargeable with knowledge” of the BIA’s administration of Congress’ appropriation, “nor [could their] legal rights be affected or impaired by its maladministration or by its diversion.” Ferris, 27 Ct. Cl., at 546. As in Cherokee Nation, we decline the Government’s invitation to ascribe “special, rather than ordinary” mean- ing to the fact that ISDA makes contracts “subject to the availability of appropriations.”5 543 U. S., at 644. Under our previous interpretation of that language, that condi- tion was satisfied here because Congress appropriated adequate funds to pay in full any individual contractor. It is important to afford that language a “uniform interpreta- tion” in this and comparable statutes, “lest legal uncer- tainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services.” Ibid. It would be particu- larly anomalous to read the statutory language differently here. Contracts made under ISDA specify that “ ‘[e]ach provision of the [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contrac- tor. . . .’ ” §450l(c), (model agreement §1(a)(2)). The Gov- ernment, in effect, must demonstrate that its reading is clearly required by the statutory language. Accordingly, the Government cannot back out of its contractual promise to pay each Tribe’s full contract support costs. —————— 5 The Government’s reliance on this statutory language is particularly curious because it suggests it is superfluous. See Brief for Petitioners 30–31 (it is “unnecessary” to specify that contracts are “subject to the availability of appropriations” (internal quotation marks omitted)); see also Reply Brief for Petitioners 7 (“[A]ll government contracts are contingent upon the appropriations provided by Congress”). Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court III A The Government primarily seeks to distinguish this case from Cherokee Nation and Ferris on the ground that Con- gress here appropriated “not to exceed” a given amount for contract support costs, thereby imposing an express cap on the total funds available. See Brief for Petitioners 26, 49. The Government argues, on this basis, that Ferris and Cherokee Nation involved “contracts made against the back- drop of unrestricted, lump-sum appropriations,” while this case does not. See Brief for Petitioners 49, 26. That premise, however, is inaccurate. In Ferris, Con- gress appropriated “[f]or improving Delaware River below Bridesburg, Pennsylvania, forty-five thousand dollars.” 20 Stat. 364. As explained in the Government’s own appro- priations law handbook, the “not to exceed” language at issue in this case has an identical meaning to the quoted language in Ferris. See GAO Redbook, p. 6–5 (“Words like ‘not to exceed’ are not the only way to establish a maxi- mum limitation. If the appropriation includes a specific amount for a particular object (such as ‘For Cuban cigars, $100’), then the appropriation is a maximum which may not be exceeded”). The appropriation in Cherokee Nation took a similar form. See, e.g., 108 Stat. 2527–2528 (“For expenses necessary to carry out . . . ISDA [and certain other enumerated Acts], $1,713,052,000”). There is no ba- sis, therefore, for distinguishing the class of appropria- tion in those cases from this one. In each case, the agency remained free to allocate funds among multiple contrac- tors, so long as the contracts served the purpose Congress identified. This result does not leave the “not to exceed” language in Congress’ appropriation without legal effect. To the contrary, it prevents the Secretary from reprogramming other funds to pay contract support costs—thereby pro- tecting funds that Congress envisioned for other BIA 12 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court programs, including tribes that choose not to enter ISDA contracts. But when an agency makes competing contrac- tual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor. B The dissent attempts to distinguish this case from Cher- okee Nation and Ferris on different grounds, relying on §450j–1(b)’s proviso that “the Secretary is not required to reduce funding for programs, projects, or activities serv- ing a tribe to make funds available to another tribe.” In the dissent’s view, that clause establishes that each dol- lar allocated by the Secretary reduces the amount of ap- propriations legally available to pay other contractors. In effect, the dissent understands §450j–1(b) to make the legal availability of appropriations turn on the Secretary’s expenditures rather than the sum allocated by Congress. That interpretation, which is inconsistent with ordinary principles of Government contracting law, is improbable. We have explained that Congress ordinarily controls the availability of appropriations; the agency controls whether to make funds from that appropriation available to pay a contractor. See Cherokee Nation, 543 U. S., at 642–643. The agency’s allocation choices do not affect the Govern- ment’s liability in the event of an underpayment. See id., at 641 (when an “ ‘unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another pur- pose’ ”).6 In Cherokee Nation, we found those ordinary —————— 6 The dissent’s view notwithstanding, it is beyond question that Con- gress appropriated sufficient unrestricted funds to pay any contractor in full. The dissent’s real argument is that §450j–1(b) reverses the applicability of the Ferris rule to ISDA, so that the Secretary’s alloca- tion of funds to one contractor reduces the legal availability of funds to others. See post, at 4 (opinion of ROBERTS, C. J.) (“that the Secretary Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court principles generally applicable to ISDA. See id., at 637– 646. We also found no evidence that Congress intended that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Id., at 638 (citing Brief for Federal Parties 23–25). The dis- sent’s reading, by contrast, would impose precisely that regime. See post, at 4–5. The better reading of §450j–1(b) accords with ordinary Government contracting principles. As we explained, su- pra, at 9, the clause underscores the Secretary’s discre- tion to allocate funds among tribes, but does not alter the Government’s legal obligation when the agency fails to pay. That reading gives full effect to the clause’s text, which addresses the “amount of funds provided,” and specifies that the Secretary is not required to reduce fund- ing for one tribe to make “funds available” to another. 450j–1(b). Indeed, even the Government acknowledges the clause governs the Secretary’s discretion to distribute funds. See Brief for Petitioners 52 (pursuant to §450j– 1(b), the Secretary was not obligated to pay tribes’ “con- tract support costs on a first-come, first-served basis, but had the authority to distribute the available money among all tribal contractors in an equitable fashion”). At minimum, the fact that we, the court below, the —————— could have allocated the funds to [a] tribe is irrelevant. What matters is what the Secretary does, and once he allocates the funds to one tribe, they are not available to another”). We are not persuaded that §450j– 1(b) was intended to enact that radical departure from ordinary Gov- ernment contracting principles. Indeed, Congress has spoken clearly and directly when limiting the Government’s total contractual liability to an amount appropriated in similar schemes; that it did not do so here further counsels against the dissent’s reading. See, e.g., 25 U.S. C. §2008(j)(2) (“[i]f the total amount of funds necessary to provide grants to tribes . . . for a fiscal year exceeds the amount of funds appro- priated . . . , the Secretary shall reduce the amount of each grant [pro rata]”). 14 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court Government, and the Tribes do not share the dissent’s reading of §450j–1(b) is strong evidence that its inter- pretation is not, as it claims, “unambiguous[ly]” correct. Post, at 7 (opinion of ROBERTS, C. J.). Because ISDA is con- strued in favor of tribes, that conclusion is fatal to the dissent. C The remaining counterarguments are unpersuasive. First, the Government suggests that today’s holding could cause the Secretary to violate the Anti-Deficiency Act, which prevents federal officers from “mak[ing] or author- iz[ing] an expenditure or obligation exceeding an amount available in an appropriation.” 31 U.S. C. §1341(a)(1)(A). But a predecessor version of that Act was in place when Ferris and Dougherty were decided, see GAO Redbook, pp. 6–9 to 6–10, and the Government did not prevail there. As Dougherty explained, the Anti-Deficiency Act’s re- quirements “apply to the official, but they do not affect the rights in this court of the citizen honestly contracting with the Government.” 18 Ct. Cl., at 503; see also Ferris, 27 Ct. Cl., at 546 (“An appropriation per se merely imposes limi- tations upon the Government’s own agents; . . . but its insufficiency does not pay the Government’s debts, nor cancel its obligations”).7 Second, the Government argues that Congress could not have intended for respondents to recover from the Judg- ment Fund, 31 U.S. C. §1304, because that would allow the Tribes to circumvent Congress’ intent to cap total —————— 7 We have some doubt whether a Government employee would violate the Anti-Deficiency Act by obeying an express statutory command to enter a contract, as was the case here. But we need not decide the question, for this case concerns only the contractual rights of tribal contractors, not the consequences of entering into such contracts for agency employees. Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court expenditures for contract support costs.8 That contention is puzzling. Congress expressly provided in ISDA that tribal contractors were entitled to sue for “money dam- ages” under the Contract Disputes Act upon the Govern- ment’s failure to pay, 25 U.S. C. §§450m–1(a), (d), and judgments against the Government under that Act are payable from the Judgment Fund, 41 U.S. C. §7108(a).9 Indeed, we cited the Contract Disputes Act, Judgment Fund, and Anti-Deficiency Act in Cherokee Nation, ex- plaining that if the Government commits its appropria- tions in a manner that leaves contractual obligations unfulfilled, “the contractor [is] free to pursue appropriate legal remedies arising because the Government broke its contractual promise.” 543 U. S., at 642. Third, the Government invokes cases in which courts have rejected contractors’ attempts to recover for amounts beyond the maximum appropriated by Congress for a particular purpose. See, e.g., Sutton v. United States, 256 U.S. 575 (1921). In Sutton, for instance, Congress made a specific line-item appropriation of $23,000 for the comple- tion of a particular project. Id., at 577. We held that the sole contractor engaged to complete that project could not recover more than that amount for his work. The Ferris and Sutton lines of cases are distinguishable, —————— 8 The Judgment Fund is a “permanent, indefinite appropriation” en- acted by Congress to pay final judgments against the United States when, inter alia, “[p]ayment may not legally be made from any other source of funds.” 31 CFR §256.1 (2011). 9 For that reason, the Government’s reliance on Office of Personnel Management v. Richmond, 496 U.S. 414 (1990), is misplaced. In Richmond, we held that the Appropriations Clause does not permit plaintiffs to recover money for Government-caused injuries for which Congress “appropriated no money.” Id., at 424. Richmond, however, indicated that the Appropriations Clause is no bar to recovery in a case like this one, in which “the express terms of a specific statute” establish “a substantive right to compensation” from the Judgment Fund. Id., at 432. 16 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court however. GAO Redbook, p. 6–18. “[I]t is settled that contractors paid from a general appropriation are not barred from recovering for breach of contract even though the appropriation is exhausted,” but that “under a specific line-item appropriation, the answer is different.” Ibid.10 The different results “follo[w] logically from the old maxim that ignorance of the law is no excuse.” Ibid. “If Congress appropriates a specific dollar amount for a particular contract, that amount is specified in the appropriation act and the contractor is deemed to know it.” Ibid. This case is far different. Hundreds of tribes entered into thousands of independent contracts, each for amounts well within the lump sum appropriated by Congress to pay contract sup- port costs. Here, where each Tribe’s “contract is but one activity under a larger appropriation, it is not reasonable to expect [each] contractor to know how much of that appropriation remain[ed] available for it at any given time.” Ibid.; see also Ferris, 27 Ct. Cl., at 546. Finally, the Government argues that legislative history suggests that Congress approved of the distribution of available funds on a uniform, pro rata basis. But “a fun- damental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.” Lincoln, 508 U. S., at 192 (internal quotation marks omitted). “[I]ndicia in commit- —————— 10 Of course, “[t]he terms ‘lump-sum’ and ‘line-item’ are relative con- cepts.” GAO Redbook, p. 6–165. For example, an appropriation for building two ships “could be viewed as a line-item appropriation in relation to the broader ‘Shipbuilding and Conversion’ category, but it was also a lump-sum appropriation in relation to the two specific vessels included.” Ibid. So long as a contractor does not seek payment beyond the amount Congress made legally available for a given pur- pose, “[t]his factual distinction does not affect the legal principle.” Ibid. See also In re Newport News Shipbuilding & Dry Dock Co., 55 Comp. Gen. 812 (1976). Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court tee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” Ibid. (internal quotation marks omitted). An agency’s discretion to spend appropriated funds is cabined only by the “text of the appropriation,” not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history. Int’l Union, UAW, 746 F. 2d, at 860–861. That principle also reflects the same ideas underlying Ferris. If a contractor’s right to payment varied based on a future court’s uncertain interpretation of legislative history, it would increase the Government’s cost of contracting. Cf. Cherokee Nation, 543 U. S., at 644. That long-run expense would likely far exceed whatever money might be saved in any individual case. IV As the Government points out, the state of affairs re- sulting in this case is the product of two congressional decisions which the BIA has found difficult to reconcile. On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of “full” funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The Government’s frustra- tion is understandable, but the dilemma’s resolution is the responsibility of Congress. Congress is not short of options. For instance, it could reduce the Government’s financial obligation by amending ISDA to remove the statutory mandate compelling the BIA to enter into self-determination contracts, or by giving the BIA flexibility to pay less than the full amount of contract support costs. It could also pass a moratorium on the formation of new self-determination contracts, as it has done before. See §328, 112 Stat. 2681–291 to 292. Or Congress could elect to make line-item appropriations, 18 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court allocating funds to cover tribes’ contract support costs on a contractor-by-contractor basis. On the other hand, Con- gress could appropriate sufficient funds to the BIA to meet the tribes’ total contract support cost needs. Indeed, there is some evidence that Congress may do just that. See H. R. Rep. No. 112–151, p. 42 (2011) (“The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission”). The desirability of these options is not for us to say. We make clear only that Congress has ample means at hand to resolve the situation underlying the Tribes’ suit. Any one of the options above could also promote transparency about the Government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the Govern- ment—not the Tribes—that must bear the consequences of Congress’ decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but “insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. The judgment of the Court of Appeals is affirmed. It is so ordered. Cite as: 567 U. S. ____ (2012) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–551 _________________ KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. RAMAH NAVAJO CHAPTER ET AL.

The Indian Self-Determination and Education Assis- tance Act (ISDA), 2 U.S. C. et seq., directs the Secretary of the Interior to enter into contracts with will- ing tribes, pursuant to which those tribes will provide services such as education and law enforcement that otherwise would have been provided by the Federal Gov- ernment. ISDA mandates that the Secretary shall pay the full amount of “contract support costs” incurred by tribes in performing their contracts. At issue in this case is whether the Government must pay those costs when Congress appropriates sufficient funds to pay in full any individual contractor’s contract support costs, but not enough funds to cover the aggregate amount due every contractor. Consistent with longstanding principles of Government contracting law, we hold that the Govern- ment must pay each tribe’s contract support costs in full. I A Congress enacted ISDA in 197 in order to achieve 2 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court “maximum Indian participation in the direction of educa- tional as well as other Federal services to Indian commu- nities so as to render such services more responsive to the needs and desires of those communities.” 2 U.S. C. a(a). To that end, the Act directs the Secretary of the Interior, “upon the request of any Indian tribe to enter into a self-determination contract to plan, conduct, and administer” health, education, economic, and social pro- grams that the Secretary otherwise would have adminis- tered. f(a)(1). As originally enacted, ISDA required the Government to provide contracting tribes with an amount of funds equiv- alent to those that the Secretary “would have other- wise provided for his direct operation of the programs.” It soon became apparent that this secretarial amount failed to account for the full costs to tribes of providing services. Because of “concern with Government’s past failure adequately to reimburse tribes’ indirect administrative costs,” Cherokee of v. Leavitt, Congress amended ISDA to require the Secretary to contract to pay the “full amount” of “contract support costs” related to each self- determination contract, §j–1(a)(2), (g).1 The Act also provides, however, that “[n]otwithstanding any other provision in [ISDA], the provision of funds under [ISDA] is subject to the availability of appropriations.” j–1(b). Congress included a model contract in ISDA and di- —————— 1 As defined by ISDA, contract support costs “shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which (A) normally are not carried on by the respective Secretary in his direct operation of the program; or (B) are provided by the Secretary in support of the contracted program from resources other than those under contract.” j–1(a)(2). Such costs include overhead adminis- trative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee of Cite as: 67 U. S. (2012) 3 Opinion of the Court rected that each tribal self-determination contract “shall contain, or incorporate [it] by reference.” l(a)(1). The model contract specifies that “ ‘[s]ubject to the availa- bility of appropriations, the Secretary shall make avail- able to the Contractor the total amount specified in the annual funding agreement’ ” between the Secretary and the tribe. l(c), (model agreement That amount “ ‘shall not be less than the applicable amount determined pursuant to [j–1(a)],’ ” which includes contract support costs. ; j–1(a)(2). The contract indicates that “ ‘[e]ach provision of [ISDA] and each provi- sion of this Contract shall be liberally construed for the benefit of the Contractor’ ” l(c), (model agree- ment Finally, the Act makes clear that if the Government fails to pay the amount contracted for, then tribal contractors are entitled to pursue “money dam- ages” in accordance with the Contract Disputes Act. m–1(a). B During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e.g., Department of the Interior and Related Agencies Appropriations Act, 2000, 113 Stat. 101A–148. Of that sum, Congress pro- vided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organiza- tions for contract support costs” under ISDA. E.g., Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. 4 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court During each relevant FY, Congress appropriated suffi- cient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appro- priate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FY 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The ex- tent of the shortfall was not revealed until each fiscal year was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes re- sponded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in fur- therance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3–4 (GAO/RCED–99–10, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U.S. C. alleg- ing that the Government failed to pay the full amount of contract support costs due from FY 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Cir- cuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was there- fore –106. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a Cite as: 67 U. S. (2012) Opinion of the Court maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 6 U. S. (2012), and now affirm.2 II A In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee we also con- sidered the Government’s promise to pay contract sup- port costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.” –637. For each FY at issue, Congress had appropriated to the Indian Health Service (IHS) a lump sum between $1.277 and $1.419 billion, “far more than the [contract support cost] amounts” due under the Tribes’ individual contracts. at 637; see (Cherokee and Shoshone- Paiute Tribes filed claims seeking $3.4 and $3. million, respectively). The Government contended, however, that Congress had appropriated inadequate funds to enable the IHS to pay the Tribes’ contract support costs in full, while meeting all of the agency’s competing fiscal priorities. As we explained, that did not excuse the Government’s responsibility to pay the Tribes. We stressed that the Government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting that ISDA “uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.” at As even the Government conceded, “in the case of ordinary contracts ‘if the amount of an unrestricted appropria- tion is sufficient to fund the contract, the contractor is —————— 2 Compare (case below), with Arctic Slope Native Assn., (no liability to pay total contract support costs beyond cap in appropriations Act). 6 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds.’ ” It followed, there- fore, that absent “something special about the promises at issue,” the Government was obligated to pay the Tribes’ contract support costs in full. We held that the mere fact that ISDA self-determination contracts are made “subject to the availability of appropri- ations” did not warrant a special rule. (internal quotation marks omitted). That commonplace provision, we explained, is ordinarily satisfied so long as Congress appropriates adequate legally unrestricted funds to pay the contracts at issue. See Because Congress made sufficient funds legally available to the agency to pay the Tribes’ contracts, it did not matter that the BIA had allo- cated some of those funds to serve other purposes, such that the remainder was insufficient to pay the Tribes in full. Rather, we agreed with the Tribes that “as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue,” the Government’s promise to pay was at 637–638. Our conclusion in Cherokee followed directly from well-established principles of Government contract- ing law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that the Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible ends. See (1892); (1); see also 2 GAO, Principles of Federal Appropria- tions Law, p. 6–17 (2d ed. 1992) (hereinafter GAO Redbook).3 That is so “even if an agency’s total lump-sum —————— 3 In for instance, Congress appropriated $4,000 for the im- Cite as: 67 U. S. (2012) 7 Opinion of the Court appropriation is insufficient to pay all the contracts the agency has made.” Cherokee In such cases, “[t]he United States are as much bound by their contracts as are individuals.” (internal quotation marks omitted). Although the agency itself cannot dis- burse funds beyond those appropriated to it, the Govern- ment’s “valid obligations will remain enforceable in the courts.” GAO Redbook, p. 6–17. This principle safeguards both the expectations of Gov- ernment contractors and the long-term fiscal interests of the United States. For contractors, the rule reflects that when “a contract is but one activity under a larger appropriation, it is not reasonable to expect the contractor to know how much of that appropriation remains available for it at any given time.” GAO Redbook, p. 6–18. Contrac- tors are responsible for knowing the size of the pie, not how the agency elects to slice it. Thus, so long as Con- gress appropriates adequate funds to cover a prospective contract, contractors need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its contractual promises. 18 Ct. Cl., at In such cases, if —————— provement of the Delaware River below Bridesburg, Pennsylvania. Act of Mar. 3, 1879, ch. 181, The Government contracted with for $37,000 to dredge the river. Halfway through ’ perfor- mance of his contract, the United States Army Corps of Engineers ran out of money to pay having used $17,000 of the appropriation to pay for other improvements. Nonetheless, the Court of Claims found that could recover for the balance of his contract. As the court explained, the appropriation “merely impose[d] limitations upon the Government’s own agents; its insufficiency [did] not pay the Gov- ernment’s debts, nor cancel its obligations, nor defeat the rights of other parties.” 27 Ct. Cl., at ; see also 18 Ct. Cl., at (rejecting Government’s argument that a contractor could not recover upon similar facts because the “appropriation had, at the time of the purchase, been covered by other contracts”). 8 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court an agency overcommits its funds such that it cannot fulfill its contractual commitments, even the Government has acknowledged that “[t]he risk of over-obligation may be found to fall on the agency,” not the contractor. Brief for Federal Parties in Cherokee v. Leavitt, O. T. 2004, No. 02–1472 et al., p. 24 (hereinafter Brief for Federal Parties). The rule likewise furthers “the Government’s own long- run interest as a reliable contracting partner in the myr- iad workaday transaction of its agencies.” United States v. Winstar Corp., (plurality opin- ion). If the Government could be trusted to fulfill its promise to pay only when more pressing fiscal needs did not arise, would-be contractors would bargain warily—if at all—and only at a premium large enough to account for the risk of nonpayment. See, e.g., Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Govern- ment Precommitment, In short, contracting would become more cumbersome and expensive for the Government, and willing partners more scarce. B The principles underlying Cherokee and dictate the result in this case. Once “Congress has appro- priated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of ‘insufficient appro- priations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee ; see also (“[T]he Gov- ernment denies none of this”). That condition is satisfied here. In each FY between 1994 and 2001, Congress appropriated to the BIA a lump- Cite as: 67 U. S. (2012) 9 Opinion of the Court sum from which “not to exceed” between $91 and $12 million was allocated for contract support costs, an amount that exceeded the sum due any tribal contractor. Within those constraints, the ability to direct those funds was “ ‘committed to agency discretion by law.’ ” v. Vigil, (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). And if there was any doubt that that general rule applied here, ISDA’s statutory language itself makes clear that the BIA may allocate funds to one tribe at the expense of another. See j–1(b) (“[T]he Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal or- ganization under this [Act]”). The upshot is that the funds appropriated by Congress were legally available to pay any individual tribal contractor in full. See 1 GAO Redbook, p. 4–6 (3d ed. 2004). The Government’s contractual promise to pay each tribal contractor the “full amount of funds to which the contractor [was] entitled,” j–1(g), was therefore bind- ing. We have expressly rejected the Government’s argu- ment that “the tribe should bear the risk that a total —————— 4 Indeed,the Indian Health Service once allocated its appropriations for new ISDA contracts on a first-come, first-serve basis. See Dept. of Health and Human Services, Indian Self-Determination Memorandum No. 92–2, p. 4 (Feb. 27, 1992). 10 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Cherokee 43 U. S., Rather, the tribal contractors were entitled to rely on the Govern- ment’s promise to pay because they were “not chargeable with knowledge” of the BIA’s administration of Congress’ appropriation, “nor [could their] legal rights be affected or impaired by its maladministration or by its diversion.” 27 Ct. Cl., at As in Cherokee we decline the Government’s invitation to ascribe “special, rather than ordinary” mean- ing to the fact that ISDA makes contracts “subject to the availability of appropriations.” Under our previous interpretation of that language, that condi- tion was satisfied here because Congress appropriated adequate funds to pay in full any individual contractor. It is important to afford that language a “uniform interpreta- tion” in this and comparable statutes, “lest legal uncer- tainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services.” It would be particu- larly anomalous to read the statutory language differently here. Contracts made under ISDA specify that “ ‘[e]ach provision of the [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contrac- tor.’ ” l(c), (model agreement The Gov- ernment, in effect, must demonstrate that its reading is clearly required by the statutory language. Accordingly, the Government cannot back out of its contractual promise to pay each Tribe’s full contract support costs. —————— The Government’s reliance on this statutory language is particularly curious because it suggests it is superfluous. See Brief for Petitioners 30–31 (it is “unnecessary” to specify that contracts are “subject to the availability of appropriations” (internal quotation marks omitted)); see also Reply Brief for Petitioners 7 (“[A]ll government contracts are contingent upon the appropriations provided by Congress”). Cite as: 67 U. S. (2012) 11 Opinion of the Court III A The Government primarily seeks to distinguish this case from Cherokee and on the ground that Con- gress here appropriated “not to exceed” a given amount for contract support costs, thereby imposing an express cap on the total funds available. See Brief for Petitioners 26, 49. The Government argues, on this basis, that and Cherokee involved “contracts made against the back- drop of unrestricted, lump-sum appropriations,” while this case does not. See Brief for Petitioners 49, 26. That premise, however, is inaccurate. In Con- gress appropriated “[f]or improving Delaware River below Bridesburg, Pennsylvania, forty-five thousand dollars.” 20 Stat. 364. As explained in the Government’s own appro- priations law handbook, the “not to exceed” language at issue in this case has an identical meaning to the quoted language in See GAO Redbook, p. 6– (“Words like ‘not to exceed’ are not the only way to establish a maxi- mum limitation. If the appropriation includes a specific amount for a particular object (such as ‘For Cuban cigars, $100’), then the appropriation is a maximum which may not be exceeded”). The appropriation in Cherokee took a similar form. See, e.g., 108 Stat. 227–228 (“For expenses necessary to carry out ISDA [and certain other enumerated Acts], $1,713,02,000”). There is no ba- sis, therefore, for distinguishing the class of appropria- tion in those cases from this one. In each case, the agency remained free to allocate funds among multiple contrac- tors, so long as the contracts served the purpose Congress identified. This result does not leave the “not to exceed” language in Congress’ appropriation without legal effect. To the contrary, it prevents the Secretary from reprogramming other funds to pay contract support costs—thereby pro- tecting funds that Congress envisioned for other BIA 12 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court programs, including tribes that choose not to enter ISDA contracts. But when an agency makes competing contrac- tual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor. B The dissent attempts to distinguish this case from Cher- okee and on different grounds, relying on j–1(b)’s proviso that “the Secretary is not required to reduce funding for programs, projects, or activities serv- ing a tribe to make funds available to another tribe.” In the dissent’s view, that clause establishes that each dol- lar allocated by the Secretary reduces the amount of ap- propriations legally available to pay other contractors. In effect, the dissent understands j–1(b) to make the legal availability of appropriations turn on the Secretary’s expenditures rather than the sum allocated by Congress. That interpretation, which is inconsistent with ordinary principles of Government contracting law, is improbable. We have explained that Congress ordinarily controls the availability of appropriations; the agency controls whether to make funds from that appropriation available to pay a contractor. See Cherokee 43 U. S., at 642–643. The agency’s allocation choices do not affect the Govern- ment’s liability in the event of an underpayment. See (when an “ ‘unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another pur- pose’ ”).6 In Cherokee we found those ordinary —————— 6 The dissent’s view notwithstanding, it is beyond question that Con- gress appropriated sufficient unrestricted funds to pay any contractor in full. The dissent’s real argument is that j–1(b) reverses the applicability of the rule to ISDA, so that the Secretary’s alloca- tion of funds to one contractor reduces the legal availability of funds to others. See post, at 4 (opinion of ROBERTS, C. J.) (“that the Secretary Cite as: 67 U. S. (2012) 13 Opinion of the Court principles generally applicable to ISDA. See at 637– 646. We also found no evidence that Congress intended that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” (citing Brief for Federal Parties 23–2). The dis- sent’s reading, by contrast, would impose precisely that regime. See post, at 4–. The better reading of j–1(b) accords with ordinary Government contracting principles. As we explained, su- pra, at 9, the clause underscores the Secretary’s discre- tion to allocate funds among tribes, but does not alter the Government’s legal obligation when the agency fails to pay. That reading gives full effect to the clause’s text, which addresses the “amount of funds provided,” and specifies that the Secretary is not required to reduce fund- ing for one tribe to make “funds available” to another. 40j–1(b). Indeed, even the Government acknowledges the clause governs the Secretary’s discretion to distribute funds. See Brief for Petitioners 2 (pursuant to j– 1(b), the Secretary was not obligated to pay tribes’ “con- tract support costs on a first-come, first-served basis, but had the authority to distribute the available money among all tribal contractors in an equitable fashion”). At minimum, the fact that we, the court below, the —————— could have allocated the funds to [a] tribe is irrelevant. What matters is what the Secretary does, and once he allocates the funds to one tribe, they are not available to another”). We are not persuaded that j– 1(b) was intended to enact that radical departure from ordinary Gov- ernment contracting principles. Indeed, Congress has spoken clearly and directly when limiting the Government’s total contractual liability to an amount appropriated in similar schemes; that it did not do so here further counsels against the dissent’s reading. See, e.g., 2 U.S. C. (“[i]f the total amount of funds necessary to provide grants to tribes for a fiscal year exceeds the amount of funds appro- priated the Secretary shall reduce the amount of each grant [pro rata]”). 14 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court Government, and the Tribes do not share the dissent’s reading of j–1(b) is strong evidence that its inter- pretation is not, as it claims, “unambiguous[ly]” correct. Post, at 7 (opinion of ROBERTS, C. J.). Because ISDA is con- strued in favor of tribes, that conclusion is fatal to the dissent. C The remaining counterarguments are unpersuasive. First, the Government suggests that today’s holding could cause the Secretary to violate the Anti-Deficiency Act, which prevents federal officers from “mak[ing] or author- iz[ing] an expenditure or obligation exceeding an amount available in an appropriation.” 31 U.S. C. But a predecessor version of that Act was in place when and were decided, see GAO Redbook, pp. 6–9 to 6–10, and the Government did not prevail there. As explained, the Anti-Deficiency Act’s re- quirements “apply to the official, but they do not affect the rights in this court of the citizen honestly contracting with the Government.” 18 Ct. Cl., at ; see also 27 Ct. Cl., at (“An appropriation per se merely imposes limi- tations upon the Government’s own agents; but its insufficiency does not pay the Government’s debts, nor cancel its obligations”).7 Second, the Government argues that Congress could not have intended for respondents to recover from the Judg- ment Fund, 31 U.S. C. because that would allow the Tribes to circumvent Congress’ intent to cap total —————— 7 We have some doubt whether a Government employee would violate the Anti-Deficiency Act by obeying an express statutory command to enter a contract, as was the case here. But we need not decide the question, for this case concerns only the contractual rights of tribal contractors, not the consequences of entering into such contracts for agency employees. Cite as: 67 U. S. (2012) 1 Opinion of the Court expenditures for contract support costs.8 That contention is puzzling. Congress expressly provided in ISDA that tribal contractors were entitled to sue for “money dam- ages” under the Contract Disputes Act upon the Govern- ment’s failure to pay, 2 U.S. C. §m–1(a), (d), and judgments against the Government under that Act are payable from the Judgment Fund, 41 U.S. C. Indeed, we cited the Contract Disputes Act, Judgment Fund, and Anti-Deficiency Act in Cherokee ex- plaining that if the Government commits its appropria- tions in a manner that leaves contractual obligations unfulfilled, “the contractor [is] free to pursue appropriate legal remedies arising because the Government broke its contractual promise.” 43 U. S., at 642. Third, the Government invokes cases in which courts have rejected contractors’ attempts to recover for amounts beyond the maximum appropriated by Congress for a particular purpose. See, e.g., Sutton v. United States, 26 U.S. 7 (1921). In Sutton, for instance, Congress made a specific line-item appropriation of $23,000 for the comple- tion of a particular project. at 77. We held that the sole contractor engaged to complete that project could not recover more than that amount for his work. The and Sutton lines of cases are distinguishable, —————— 8 The Judgment Fund is a “permanent, indefinite appropriation” en- acted by Congress to pay final judgments against the United States when, inter alia, “[p]ayment may not legally be made from any other source of funds.” 31 CFR §26.1 9 For that reason, the Government’s reliance on Office of Personnel is misplaced. In Richmond, we held that the Appropriations Clause does not permit plaintiffs to recover money for Government-caused injuries for which Congress “appropriated no money.” Richmond, however, indicated that the Appropriations Clause is no bar to recovery in a case like this one, in which “the express terms of a specific statute” establish “a substantive right to compensation” from the Judgment Fund. at 432. 16 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court however. GAO Redbook, p. 6–18. “[I]t is settled that contractors paid from a general appropriation are not barred from recovering for breach of contract even though the appropriation is exhausted,” but that “under a specific line-item appropriation, the answer is different.” 10 The different results “follo[w] logically from the old maxim that ignorance of the law is no excuse.” “If Congress appropriates a specific dollar amount for a particular contract, that amount is specified in the appropriation act and the contractor is deemed to know it.” This case is far different. Hundreds of tribes entered into thousands of independent contracts, each for amounts well within the lump sum appropriated by Congress to pay contract sup- port costs. Here, where each Tribe’s “contract is but one activity under a larger appropriation, it is not reasonable to expect [each] contractor to know how much of that appropriation remain[ed] available for it at any given time.” ; see also 27 Ct. Cl., at Finally, the Government argues that legislative history suggests that Congress approved of the distribution of available funds on a uniform, pro rata basis. But “a fun- damental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.” 08 U. S., at 192 (internal quotation marks omitted). “[I]ndicia in commit- —————— 10 Of course, “[t]he terms ‘lump-sum’ and ‘line-item’ are relative con- cepts.” GAO Redbook, p. 6–16. For example, an appropriation for building two ships “could be viewed as a line-item appropriation in relation to the broader ‘Shipbuilding and Conversion’ category, but it was also a lump-sum appropriation in relation to the two specific vessels included.” So long as a contractor does not seek payment beyond the amount Congress made legally available for a given pur- pose, “[t]his factual distinction does not affect the legal principle.” See also In re Newport News Shipbuilding & Dry Dock Co., Comp. Gen. 812 (1976). Cite as: 67 U. S. (2012) 17 Opinion of the Court tee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” (internal quotation marks omitted). An agency’s discretion to spend appropriated funds is cabined only by the “text of the appropriation,” not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history. Int’l Union, UAW, 746 F. 2d, at 860–. That principle also reflects the same ideas underlying If a contractor’s right to payment varied based on a future court’s uncertain interpretation of legislative history, it would increase the Government’s cost of contracting. Cf. Cherokee That long-run expense would likely far exceed whatever money might be saved in any individual case. IV As the Government points out, the state of affairs re- sulting in this case is the product of two congressional decisions which the BIA has found difficult to reconcile. On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of “full” funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The Government’s frustra- tion is understandable, but the dilemma’s resolution is the responsibility of Congress. Congress is not short of options. For instance, it could reduce the Government’s financial obligation by amending ISDA to remove the statutory mandate compelling the BIA to enter into self-determination contracts, or by giving the BIA flexibility to pay less than the full amount of contract support costs. It could also pass a moratorium on the formation of new self-determination contracts, as it has done before. See –291 to 292. Or Congress could elect to make line-item appropriations, 18 SALAZAR v. RAMAH NAVAJO CHAPTER Opinion of the Court allocating funds to cover tribes’ contract support costs on a contractor-by-contractor basis. On the other hand, Con- gress could appropriate sufficient funds to the BIA to meet the tribes’ total contract support cost needs. Indeed, there is some evidence that Congress may do just that. See H. R. Rep. No. 112–11, p. 42 (“The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission”). The desirability of these options is not for us to say. We make clear only that Congress has ample means at hand to resolve the situation underlying the Tribes’ suit. Any one of the options above could also promote transparency about the Government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the Govern- ment—not the Tribes—that must bear the consequences of Congress’ decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but “insufficient to pay all the contracts the agency has made.” Cherokee The judgment of the Court of Appeals is affirmed. It is so ordered. Cite as: 67 U. S. (2012) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–1 KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS v. RAMAH NAVAJO CHAPTER ET AL.

Justice Roberts

dissenting

Salazar v. Ramah Navajo Chapter

2012-06-18

https://www.courtlistener.com/opinion/802399/salazar-v-ramah-navajo-chapter/

https://www.courtlistener.com/api/rest/v3/clusters/802399/

2011-066

Today the Court concludes that the Federal Government must pay the full amount of contract support costs in- curred by the respondent Tribes, regardless of whether there are any appropriated funds left for that purpose. This despite the facts that payment of such costs is “subject to the availability of appropriations,” a condition expressly set forth in both the statute and the contracts providing for such payment, 25 U.S. C. §§450j–1(b), 450l(c) (Model Agreement §1(b)(4)); that payment of the costs for all tribes is “not to exceed” a set amount, e.g., 108 Stat. 2511, an amount that would be exceeded here; and that the Secretary “is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe,” §450j–1(b). Because the Court’s conclusion cannot be squared with these unambig- uous restrictions on the payment of contract support costs, I respectfully dissent. The Indian Self-Determination and Education Assis- tance Act provides: “Notwithstanding any other provision in [the Act], the provision of funds under this [Act] is subject to the availability of appropriations . . . .” Ibid. 2 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting This condition is repeated in the Tribes’ contracts with the Government. App. 206; see also §450l(c) (Model Agree- ment §1(b)(4)). The question in this case is whether ap- propriations were “available” during fiscal years 1994 through 2001 to pay all the contract support costs incurred by the Tribes. Only if appropriations were “available” may the Tribes hold the Government liable for the unpaid amounts. Congress restricted the amount of funds “available” to pay the Tribes’ contract support costs in two ways. First, in each annual appropriations statute for the Depart- ment of the Interior from fiscal year 1994 to 2001, Con- gress provided that spending on contract support costs for all tribes was “not to exceed” a certain amount. The fiscal year 1995 appropriations statute is representative. It provided: “For operation of Indian programs . . . , $1,526,778,000, . . . of which not to exceed $95,823,000 shall be for payments to tribes and tribal organizations for contract support costs . . . .” 108 Stat. 2510–2511. As the Court acknowledges, ante, at 11–12, the phrase “not to exceed” has a settled meaning in federal appropriations law. By use of the phrase, Congress imposed a cap on the total funds available for contract support costs in each fiscal year. See 2 General Accounting Office, Principles of Federal Appropriations Law, p. 6–8 (2d ed. 1992) (herein- after GAO Redbook) (“[T]he most effective way to establish a maximum . . . earmark is by the words ‘not to exceed’ or ‘not more than’ ”). Second, in §450j–1(b) itself—in the very same sentence that conditions funding on the “availability of appropria- tions”—Congress provided that “the Secretary [of the Interior] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds avail- able to another tribe or tribal organization under [the Act].” An agency may be required to shift funds from one object to another, within statutory limits, when doing so is Cite as: 567 U. S. ____ (2012) 3 ROBERTS, C. J., dissenting necessary to meet a contractual obligation. See 1 GAO Redbook, p. 2–26 (2d ed. 1991). But the “reduction” clause in §450j–1(b) expressly provides that the Secretary is “not required” to engage in such reprogramming to make one tribe’s funds “available to another tribe.” It follows that appropriations allocated for “programs, projects, or activi- ties serving a tribe” are not “available” to another tribe, unless the Secretary reallocates them. Contrary to the Court’s suggestion, ante, at 13–14, the Government shares this view that the “reduction” clause “specifically relieves the Secretary of any obligation to make funds available to one contractor by reducing payments to others.” Brief for Petitioners 51 (citing Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F.3d 1296, 1304 (CA Fed. 2010), cert. pend- ing, No. 11–83 (filed July 18, 2011)). Given these express restrictions established by Con- gress—which no one doubts are valid—I cannot agree with the Court’s conclusion that appropriations were “avail- able” to pay the Tribes’ contract support costs in full. Once the Secretary had allocated all the funds appropriated for contract support costs, no other funds could be used for that purpose without violating the “not to exceed” re- strictions in the relevant appropriations statutes. The Court agrees. Ante, at 11–12. That leaves only one other possible source of funds to pay the disputed costs in this case: funds appropriated for contract support costs, but allocated to pay such costs incurred by other tribes. Those funds were not “available” either, however, because they were “funding for programs, projects, or activities serving a tribe,” and the Secretary was not required to reduce such funding “to make funds available to another tribe.” §450j–1(b). In reaching a contrary conclusion, the Court fails to appreciate the full significance of the “reduction” clause in §450j–1(b). As construed by the Court, that clause merely confirms that the Secretary “may allocate funds to one 4 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting tribe at the expense of another.” Ante, at 9. But as ex- plained above, the clause does more than that: It also establishes that when the Secretary does allocate funds to one tribe at the expense of another, the latter tribe has no right to those funds—the funds are not “available” to it. The fact that the Secretary could have allocated the funds to the other tribe is irrelevant. What matters is what the Secretary actually does, and once he allocates the funds to one tribe, they are not “available” to another. The Court rejects this reading of the “reduction” clause, on the ground that it would constitute a “radical departure from ordinary Government contracting principles.” Ante, at 13, n. 6. But the fact that the clause operates as a constraint on the “availability of appropriations” is evident not only from its text, which speaks in terms of “funds available,” but also from its placement in the statute, immediately following the “subject to the availability” clause. Under the Court’s view, by contrast, the “reduc- tion” clause merely “underscores the Secretary’s discretion to allocate funds among tribes.” Ante, at 13. There is, however, no reason to suppose that Congress enacted the provision simply to confirm this “ordinary” rule. Ibid. We generally try to avoid reading statutes to be so “insig- nificant.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks omitted). The Court maintains that its holding is compelled by our decision in Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631 (2005). Ante, at 8. Like respondents here, the tribes in Cherokee Nation sued the Government for unpaid contract support costs under the Act. Congress had ap- propriated certain sums to the Indian Health Service “[f]or expenses necessary to carry out” the Act, e.g., 108 Stat. 2527–2528, but—unlike in this case—those appropriations “contained no relevant statutory restriction,” 543 U. S., at 637. The Government in Cherokee Nation contended that it was not obligated to pay the contract support costs as Cite as: 567 U. S. ____ (2012) 5 ROBERTS, C. J., dissenting promised, in light of the “reduction” clause in §450j–1(b). The Government argued that the clause “makes nonbind- ing a promise to pay one tribe’s costs where doing so would require funds that the Government would otherwise de- vote to ‘programs, projects, or activities serving . . . an- other tribe.’ ” Id., at 641 (quoting §450j–1(b)). We ruled against the Government, but not because of any disagreement with its reading of the “reduction” clause. The basis for our decision was instead that “the relevant congressional appropriations contained other unrestricted funds, small in amount but sufficient to pay the claims at issue.” 543 U. S., at 641 (emphasis altered). Those funds were allocated for “ ‘inherent federal func- tions,’ such as the cost of running the Indian Health Ser- vice’s central Washington office.” Id., at 641–642. They were not restricted by the “reduction” clause, because they were not funds for “ ‘programs, projects, or activities serv- ing . . . another tribe.’ ” Id., at 641 (quoting §450j–1(b)). Nor were they restricted by the pertinent appropriations statutes, which, as noted, contained no relevant limiting language. See ibid. We therefore held that those funds— which we described as “unrestricted” throughout our opinion, id., at 641, 642, 643, 647—were available to pay the disputed contract support costs. As even the Tribes concede, Cherokee Nation does not control this case. Tr. of Oral Arg. 39 (“I don’t think this case is controlled by Cherokee” (counsel for the Tribes)). The reason is not that the appropriations statutes in this case contained “not to exceed” caps while those in Chero- kee Nation did not. The Court is correct that appropriat- ing an amount “for” a particular purpose has the same effect as providing that appropriations for that purpose are “not to exceed” that amount. Ante, at 11. What makes this case different is where Congress drew the line. In Cherokee Nation, the statutes capped funding for “expenses necessary to carry out” the Act, a category that included 6 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting funding for both “inherent federal functions” and contract support costs. Accordingly, funding for one could be used for the other, without violating the cap. Here, by contrast, the statutes capped funding for contract support costs specifically. Thus, once the Secretary exhausted those funds, he could not reprogram other funds—such as funds for “inherent federal functions”—to pay the costs. With the caps in place, moreover, the “reduction” clause, as explained above, rendered unavailable the only possible source of funds left: funds already allocated for other contract support costs. Unlike in Cherokee Nation, there- fore, there were no unrestricted funds to pay the costs at issue in this case. The Court’s quotation from Cherokee Nation concerning “when an ‘ “unrestricted appropriation is sufficient to fund the contract,” ’ ” ante, at 12 (emphasis added) (quoting Cherokee Nation, supra, at 641), is accord- ingly beside the point. The Court also relies on Ferris v. United States, 27 Ct. Cl. 542 (1892). That case involved a government contract to dredge the Delaware River. When work under the contract stopped because funds from the relevant appro- priation had been exhausted, a contractor sued the Gov- ernment for breach of contract, and the Court of Claims held that he was entitled to recover lost profits. As the court explained, “[a] contractor who is one of several per- sons to be paid out of an appropriation is not chargeable with knowledge of its administration, nor can his legal rights be affected or impaired by its maladministration or by its diversion, whether legal or illegal, to other objects.” Id., at 546. That principle, however, cannot “dictate the result in this case.” Ante, at 8. The statute in Ferris appropriated an amount “[f]or improving [the] Delaware River,” which prevented spending for that purpose beyond the specified amount. 20 Stat. 364. But in that case, all funds appropriated for that purpose were equally avail- able to all contractors. Here that is not true; §450j–1(b) Cite as: 567 U. S. ____ (2012) 7 ROBERTS, C. J., dissenting makes clear that funds allocated to one contractor are not available to another. Thus, the principle in Ferris does not apply. It is true, as the Court notes, ante, at 10, that each of the Tribes’ contracts provides that the Act and the con- tract “shall be liberally construed for the benefit of the Contractor.” App. 203; see also §450l(c) (Model Agreement §1(a)(2)). But a provision can be construed “liberally” as opposed to “strictly” only when there is some ambiguity to construe. And here there is none. Congress spoke clearly when it said that the provision of funds was “subject to the availability of appropriations,” that spending on contract support costs was “not to exceed” a specific amount, and that the Secretary was “not required” to make funds allo- cated for one tribe’s costs “available” to another. The unambiguous meaning of these provisions is that when the Secretary has allocated the maximum amount of funds appropriated each fiscal year for contract support costs, there are no other appropriations “available” to pay any remaining costs. This is hardly a typical government contracts case. Many government contracts contain a “subject to the availability of appropriations” clause, and many appropri- ations statutes contain “not to exceed” language. But this case involves not only those provisions but a third, reliev- ing the Secretary of any obligation to make funds “availa- ble” to one contractor by reducing payments to others. Such provisions will not always appear together, but when they do, we must give them effect. Doing so here, I would hold that the Tribes are not entitled to payment of their contract support costs in full, and I would reverse the contrary judgment of the Court of Appeals for the Tenth Circuit

Today the Court concludes that the Federal Government must pay the full amount of contract support costs in- curred by the respondent Tribes, regardless of whether there are any appropriated funds left for that purpose. This despite the facts that payment of such costs is “subject to the availability of appropriations,” a condition expressly set forth in both the statute and the contracts providing for such payment, 25 U.S. C. 450l(c) (Model Agreement that payment of the costs for all tribes is “not to exceed” a set amount, e.g., 108 Stat. 2511, an amount that would be exceeded here; and that the Secretary “is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe,” Because the Court’s conclusion cannot be squared with these unambig- uous restrictions on the payment of contract support costs, I respectfully dissent. The Indian Self-Determination and Education Assis- tance Act provides: “Notwithstanding any other provision in [the Act], the provision of funds under this [Act] is subject to the availability of appropriations” 2 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting This condition is repeated in the Tribes’ contracts with the Government. App. 206; see also (Model Agree- ment The question in this case is whether ap- propriations were “available” during fiscal years 1994 through 2001 to pay all the contract support costs incurred by the Tribes. Only if appropriations were “available” may the Tribes hold the Government liable for the unpaid amounts. Congress restricted the amount of funds “available” to pay the Tribes’ contract support costs in two ways. First, in each annual appropriations statute for the Depart- ment of the Interior from fiscal year 1994 to 2001, Con- gress provided that spending on contract support costs for all tribes was “not to exceed” a certain amount. The fiscal year 1995 appropriations statute is representative. It provided: “For operation of Indian programs $1,526,778,000, of which not to exceed $95,823,000 shall be for payments to tribes and tribal organizations for contract support costs” –2511. As the Court acknowledges, ante, at 11–12, the phrase “not to exceed” has a settled meaning in federal appropriations law. By use of the phrase, Congress imposed a cap on the total funds available for contract support costs in each fiscal year. See 2 General Accounting Office, Principles of Federal Appropriations Law, p. 6–8 (2d ed. 1992) (herein- after GAO Redbook) (“[T]he most effective way to establish a maximum earmark is by the words ‘not to exceed’ or ‘not more than’ ”). Second, in itself—in the very same sentence that conditions funding on the “availability of appropria- tions”—Congress provided that “the Secretary [of the Interior] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds avail- able to another tribe or tribal organization under [the Act].” An agency may be required to shift funds from one object to another, within statutory limits, when doing so is Cite as: 567 U. S. (2012) 3 ROBERTS, C. J., dissenting necessary to meet a contractual obligation. See 1 GAO Redbook, p. 2–26 (2d ed. 1991). But the “reduction” clause in expressly provides that the Secretary is “not required” to engage in such reprogramming to make one tribe’s funds “available to another tribe.” It follows that appropriations allocated for “programs, projects, or activi- ties serving a tribe” are not “available” to another tribe, unless the Secretary reallocates them. Contrary to the Court’s suggestion, ante, at 13–14, the Government shares this view that the “reduction” clause “specifically relieves the Secretary of any obligation to make funds available to one contractor by reducing payments to others.” Brief for Petitioners 51 cert. pend- ing, No. 11–83 (filed July 18, 2011)). Given these express restrictions established by Con- gress—which no one doubts are valid—I cannot agree with the Court’s conclusion that appropriations were “avail- able” to pay the Tribes’ contract support costs in full. Once the Secretary had allocated all the funds appropriated for contract support costs, no other funds could be used for that purpose without violating the “not to exceed” re- strictions in the relevant appropriations statutes. The Court agrees. Ante, at 11–12. That leaves only one other possible source of funds to pay the disputed costs in this case: funds appropriated for contract support costs, but allocated to pay such costs incurred by other tribes. Those funds were not “available” either, however, because they were “funding for programs, projects, or activities serving a tribe,” and the Secretary was not required to reduce such funding “to make funds available to another tribe.” In reaching a contrary conclusion, the Court fails to appreciate the full significance of the “reduction” clause in As construed by the Court, that clause merely confirms that the Secretary “may allocate funds to one 4 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting tribe at the expense of another.” Ante, at 9. But as ex- plained above, the clause does more than that: It also establishes that when the Secretary does allocate funds to one tribe at the expense of another, the latter tribe has no right to those funds—the funds are not “available” to it. The fact that the Secretary could have allocated the funds to the other tribe is irrelevant. What matters is what the Secretary actually does, and once he allocates the funds to one tribe, they are not “available” to another. The Court rejects this reading of the “reduction” clause, on the ground that it would constitute a “radical departure from ordinary Government contracting principles.” Ante, at 13, n. 6. But the fact that the clause operates as a constraint on the “availability of appropriations” is evident not only from its text, which speaks in terms of “funds available,” but also from its placement in the statute, immediately following the “subject to the availability” clause. Under the Court’s view, by contrast, the “reduc- tion” clause merely “underscores the Secretary’s discretion to allocate funds among tribes.” Ante, at 13. There is, however, no reason to suppose that Congress enacted the provision simply to confirm this “ordinary” rule. We generally try to avoid reading statutes to be so “insig- nificant.” TRW (internal quotation marks omitted). The Court maintains that its holding is compelled by our decision in Cherokee of Okla. v. Leavitt, 543 U.S. 6 (2005). Ante, at 8. Like respondents here, the tribes in Cherokee sued the Government for unpaid contract support costs under the Act. Congress had ap- propriated certain sums to the Indian Health Service “[f]or expenses necessary to carry out” the Act, e.g., 108 Stat. 2527–2528, but—unlike in this case—those appropriations “contained no relevant statutory restriction,” 543 U. S., at 637. The Government in Cherokee contended that it was not obligated to pay the contract support costs as Cite as: 567 U. S. (2012) 5 ROBERTS, C. J., dissenting promised, in light of the “reduction” clause in The Government argued that the clause “makes nonbind- ing a promise to pay one tribe’s costs where doing so would require funds that the Government would otherwise de- vote to ‘programs, projects, or activities serving an- other tribe.’ ” (quoting ). We ruled against the Government, but not because of any disagreement with its reading of the “reduction” clause. The basis for our decision was instead that “the relevant congressional appropriations contained other unrestricted funds, small in amount but sufficient to pay the claims at issue.” 543 U. S., Those funds were allocated for “ ‘inherent federal func- tions,’ such as the cost of running the Indian Health Ser- vice’s central Washington office.” –642. They were not restricted by the “reduction” clause, because they were not funds for “ ‘programs, projects, or activities serv- ing another tribe.’ ” (quoting ). Nor were they restricted by the pertinent appropriations statutes, which, as noted, contained no relevant limiting language. See We therefore held that those funds— which we described as “unrestricted” throughout our opinion, 642, 643, 647—were available to pay the disputed contract support costs. As even the Tribes concede, Cherokee does not control this case. Tr. of Oral Arg. 39 (“I don’t think this case is controlled by Cherokee” (counsel for the Tribes)). The reason is not that the appropriations statutes in this case contained “not to exceed” caps while those in Chero- kee did not. The Court is correct that appropriat- ing an amount “for” a particular purpose has the same effect as providing that appropriations for that purpose are “not to exceed” that amount. Ante, at 11. What makes this case different is where Congress drew the line. In Cherokee the statutes capped funding for “expenses necessary to carry out” the Act, a category that included 6 SALAZAR v. RAMAH NAVAJO CHAPTER ROBERTS, C. J., dissenting funding for both “inherent federal functions” and contract support costs. Accordingly, funding for one could be used for the other, without violating the cap. Here, by contrast, the statutes capped funding for contract support costs specifically. Thus, once the Secretary exhausted those funds, he could not reprogram other funds—such as funds for “inherent federal functions”—to pay the costs. With the caps in place, moreover, the “reduction” clause, as explained above, rendered unavailable the only possible source of funds left: funds already allocated for other contract support costs. Unlike in Cherokee there- fore, there were no unrestricted funds to pay the costs at issue in this case. The Court’s quotation from Cherokee concerning “when an ‘ “unrestricted appropriation is sufficient to fund the contract,” ’ ” ante, at 12 (emphasis added) (quoting Cherokee ), is accord- ingly beside the point. The Court also relies on Ferris v. United States, 27 Ct. Cl. 542 (1892). That case involved a government contract to dredge the Delaware River. When work under the contract stopped because funds from the relevant appro- priation had been exhausted, a contractor sued the Gov- ernment for breach of contract, and the Court of Claims held that he was entitled to recover lost profits. As the court explained, “[a] contractor who is one of several per- sons to be paid out of an appropriation is not chargeable with knowledge of its administration, nor can his legal rights be affected or impaired by its maladministration or by its diversion, whether legal or illegal, to other objects.” That principle, however, cannot “dictate the result in this case.” Ante, at 8. The statute in Ferris appropriated an amount “[f]or improving [the] Delaware River,” which prevented spending for that purpose beyond the specified amount. But in that case, all funds appropriated for that purpose were equally avail- able to all contractors. Here that is not true; Cite as: 567 U. S. (2012) 7 ROBERTS, C. J., dissenting makes clear that funds allocated to one contractor are not available to another. Thus, the principle in Ferris does not apply. It is true, as the Court notes, ante, at 10, that each of the Tribes’ contracts provides that the Act and the con- tract “shall be liberally construed for the benefit of the Contractor.” App. 203; see also (Model Agreement But a provision can be construed “liberally” as opposed to “strictly” only when there is some ambiguity to construe. And here there is none. Congress spoke clearly when it said that the provision of funds was “subject to the availability of appropriations,” that spending on contract support costs was “not to exceed” a specific amount, and that the Secretary was “not required” to make funds allo- cated for one tribe’s costs “available” to another. The unambiguous meaning of these provisions is that when the Secretary has allocated the maximum amount of funds appropriated each fiscal year for contract support costs, there are no other appropriations “available” to pay any remaining costs. This is hardly a typical government contracts case. Many government contracts contain a “subject to the availability of appropriations” clause, and many appropri- ations statutes contain “not to exceed” language. But this case involves not only those provisions but a third, reliev- ing the Secretary of any obligation to make funds “availa- ble” to one contractor by reducing payments to others. Such provisions will not always appear together, but when they do, we must give them effect. Doing so here, I would hold that the Tribes are not entitled to payment of their contract support costs in full, and I would reverse the contrary judgment of the Court of Appeals for the Tenth Circuit

Justice Kennedy

majority

Byrd v. United States

2018-05-14

https://www.courtlistener.com/opinion/4497658/byrd-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4497658/

2017-033

In September 2014, Pennsylvania State Troopers pulled over a car driven by petitioner Terrence Byrd. Byrd was the only person in the car. In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an author- ized driver. For this reason, the troopers told Byrd they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U.S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U.S. C. §931(a)(1). Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Based on this conclusion, it appears 2 BYRD v. UNITED STATES Opinion of the Court that both the District Court and Court of Appeals deemed it unnecessary to consider whether the troopers had prob- able cause to search the car. This Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an author- ized driver on the rental agreement. The Court now holds that, as a general rule, someone in otherwise lawful pos- session and control of a rental car has a reasonable expec- tation of privacy in it even if the rental agreement does not list him or her as an authorized driver. The Court concludes a remand is necessary to address in the first instance the Government’s argument that this general rule is inapplicable because, in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy. It is necessary to remand as well to determine whether, even if Byrd had a right to object to the search, probable cause justified it in any event. I On September 17, 2014, petitioner Terrence Byrd and Latasha Reed drove in Byrd’s Honda Accord to a Budget car-rental facility in Wayne, New Jersey. Byrd stayed in the parking lot in the Honda while Reed went to the Budget desk and rented a Ford Fusion. The agreement Reed signed required her to certify that she had a valid driver’s license and had not committed certain vehicle- related offenses within the previous three years. An ad- dendum to the agreement, which Reed initialed, provides the following restriction on who may drive the rental car: “I understand that the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the renter’s permission, while on company business), or a person Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court who appears at the time of the rental and signs an Ad- ditional Driver Form. These other drivers must also be at least 25 years old and validly licensed. “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.” App. 19. In filling out the paperwork for the rental agreement, Reed did not list an additional driver. With the rental keys in hand, Reed returned to the parking lot and gave them to Byrd. The two then left the facility in separate cars—she in his Honda, he in the rental car. Byrd returned to his home in Patterson, New Jersey, and put his personal belongings in the trunk of the rental car. Later that afternoon, he departed in the car alone and headed toward Pittsburgh, Pennsylvania. After driving nearly three hours, or roughly half the distance to Pittsburgh, Byrd passed State Trooper David Long, who was parked in the median of Interstate 81 near Harrisburg, Pennsylvania. Long was suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Long knew the Ford Fusion was a rental car because one of its windows contained a barcode. Based on these observations, he decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction. When Long approached the passenger window of Byrd’s car to explain the basis for the stop and to ask for identifi- cation, Byrd was “visibly nervous” and “was shaking and 4 BYRD v. UNITED STATES Opinion of the Court had a hard time obtaining his driver’s license.” Id., at 37. He handed an interim license and the rental agreement to Long, stating that a friend had rented the car. Long re- turned to his vehicle to verify Byrd’s license and noticed Byrd was not listed as an additional driver on the rental agreement. Around this time another trooper, Travis Martin, arrived at the scene. While Long processed Byrd’s license, Martin conversed with Byrd, who again stated that a friend had rented the vehicle. After Martin walked back to Long’s patrol car, Long commented to Martin that Byrd was “not on the renter agreement,” to which Martin replied, “yeah, he has no expectation of privacy.” 3 App. to Brief for Appellant in No. 16–1509 (CA3), at 21:40. A computer search based on Byrd’s identification re- turned two different names. Further inquiry suggested the other name might be an alias and also revealed that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant in New Jersey for a probation violation. After learning that New Jersey did not want Byrd arrested for extradition, the troopers asked Byrd to step out of the vehicle and patted him down. Long asked Byrd if he had anything illegal in the car. When Byrd said he did not, the troopers asked for his consent to search the car. At that point Byrd said he had a “blunt” in the car and offered to retrieve it for them. The officers understood “blunt” to mean a marijuana cigarette. They declined to let him retrieve it and continued to seek his consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The troopers then opened the passenger and driver doors and began a thorough search of the passenger compartment. Martin proceeded from there to search the car’s trunk, including by opening up and taking things out of a large cardboard box, where he found a laundry bag containing body armor. At this point, the troopers decided to detain Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court Byrd. As Martin walked toward Byrd and said he would be placing him in handcuffs, Byrd began to run away. A third trooper who had arrived on the scene joined Long and Martin in pursuit. When the troopers caught up to Byrd, he surrendered and admitted there was heroin in the car. Back at the car, the troopers resumed their search of the laundry bag and found 49 bricks of heroin. In pretrial proceedings Byrd moved to suppress the evidence found in the trunk of the rental car, arguing that the search violated his Fourth Amendment rights. Al- though Long contended at a suppression hearing that the troopers had probable cause to search the car after Byrd stated it contained marijuana, the District Court denied Byrd’s motion on the ground that Byrd lacked “standing” to contest the search as an initial matter, 2015 WL 5038455, *2 (MD Pa., Aug. 26, 2015) (citing United States v. Kennedy, 638 F.3d 159, 165 (CA3 2011)). Byrd later entered a conditional guilty plea, reserving the right to appeal the suppression ruling. The Court of Appeals affirmed in a brief summary opin- ion. 679 Fed. Appx. 146 (CA3 2017). As relevant here, the Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue . . . and determined such a person has no expec- tation of privacy and therefore no standing to challenge a search of the vehicle.” Id., at 150 (citing Kennedy, supra, at 167–168). The Court of Appeals did not reach the probable-cause question. This Court granted Byrd’s petition for a writ of certio- rari, 582 U. S. ___ (2017), to address the conflict among the Courts of Appeals over whether an unauthorized driver has a reasonable expectation of privacy in a rental car. Compare United States v. Seeley, 331 F.3d 471, 472 (CA5 6 BYRD v. UNITED STATES Opinion of the Court 2003) (per curiam); United States v. Wellons, 32 F.3d 117, 119 (CA4 1994); United States v. Roper, 918 F.2d 885, 887–888 (CA10 1990), with United States v. Smith, 263 F.3d 571, 581–587 (CA6 2001); Kennedy, supra, at 165– 168, and with United States v. Thomas, 447 F.3d 1191, 1196–1199 (CA9 2006); United States v. Best, 135 F.3d 1223, 1225 (CA8 1998). II Few protections are as essential to individual liberty as the right to be free from unreasonable searches and sei- zures. The Framers made that right explicit in the Bill of Rights following their experience with the indignities and invasions of privacy wrought by “general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.” Chimel v. California, 395 U.S. 752, 761 (1969). Ever mindful of the Fourth Amendment and its history, the Court has viewed with disfavor practices that permit “police officers unbridled discretion to rummage at will among a person’s private effects.” Arizona v. Gant, 556 U.S. 332, 345 (2009). This concern attends the search of an automobile. See Delaware v. Prouse, 440 U.S. 648, 662 (1979). The Court has acknowledged, however, that there is a diminished expectation of privacy in automobiles, which often permits officers to dispense with obtaining a warrant before con- ducting a lawful search. See, e.g., California v. Acevedo, 500 U.S. 565, 579 (1991). Whether a warrant is required is a separate question from the one the Court addresses here, which is whether the person claiming a constitutional violation “has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Rakas v. Illi- nois, 439 U.S. 128, 133 (1978). Answering that question requires examination of whether the person claiming the Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court constitutional violation had a “legitimate expectation of privacy in the premises” searched. Id., at 143. “Expecta- tions of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.” Id., at 144, n. 12. Still, “property concepts” are instructive in “determining the presence or absence of the privacy interests protected by that Amendment.” Ibid. Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legiti- mate expectations of privacy, which was derived from the second Justice Harlan’s concurrence in Katz v. United States, 389 U.S. 347 (1967), supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” Florida v. Jardines, 569 U.S. 1, 11 (2013). Perhaps in light of this clarification, Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Ap- peals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005), it is generally unwise to consider arguments in the first in- stance, and the Court declines to reach Byrd’s contention that he was a second bailee. Reference to property concepts, however, aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement? 8 BYRD v. UNITED STATES Opinion of the Court III A One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well estab- lished that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. See Jones v. United States, 362 U.S. 257, 259 (1960); Katz, supra, at 352; Mancusi v. DeForte, 392 U.S. 364, 368 (1968); Minnesota v. Olson, 495 U.S. 91, 98 (1990). On the other hand, it is also clear that legitimate pres- ence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.” Rakas, 439 U.S., at 142; see also id., at 148 (“We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling”); Minnesota v. Carter, 525 U.S. 83, 91 (1998). Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circum- stances in which a person can be said to have a reasonable expectation of privacy, it has explained that “[l]egitimation of expectations of privacy by law must have a source out- side of the Fourth Amendment, either by reference to concepts of real or personal property law or to understand- ings that are recognized and permitted by society.” Rakas, 439 U.S., at 144, n. 12. The two concepts in cases like this one are often linked. “One of the main rights attach- ing to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court property will in all likelihood have a legitimate expecta- tion of privacy by virtue of the right to exclude.” Ibid. (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1). This general property-based concept guides resolution of this case. B Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections. Byrd, by contrast, contends that the sole occupant of a rental car always has an expectation of privacy in it based on mere possession and control. There is more to recom- mend Byrd’s proposed rule than the Government’s; but, without qualification, it would include within its ambit thieves and others who, not least because of their lack of any property-based justification, would not have a reason- able expectation of privacy. 1 Stripped to its essentials, the Government’s position is that only authorized drivers of rental cars have expecta- tions of privacy in those vehicles. This position is based on the following syllogism: Under Rakas, passengers do not have an expectation of privacy in an automobile glove compartment or like places; an unauthorized driver like Byrd would have been the passenger had the renter been driving; and the unauthorized driver cannot obtain greater protection when he takes the wheel and leaves the renter behind. The flaw in this syllogism is its major premise, for it is a misreading of Rakas. The Court in Rakas did not hold that passengers cannot have an expectation of privacy in automobiles. To the contrary, the Court disclaimed any intent to hold “that a 10 BYRD v. UNITED STATES Opinion of the Court passenger lawfully in an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it.” 439 U.S., at 150, n. 17 (internal quotation marks omitted). The Court instead rejected the argument that legitimate presence alone was sufficient to assert a Fourth Amendment interest, which was fatal to the petitioners’ case there because they had “claimed only that they were ‘legitimately on [the] premises’ and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched.” Ibid. What is more, the Government’s syllogism is beside the point, because this case does not involve a passenger at all but instead the driver and sole occupant of a rental car. As Justice Powell observed in his concurring opinion in Rakas, a “distinction . . . may be made in some circum- stances between the Fourth Amendment rights of passen- gers and the rights of an individual who has exclusive control of an automobile or of its locked compartments.” Id., at 154. This situation would be similar to the defend- ant in Jones, supra, who, as Rakas notes, had a reasonable expectation of privacy in his friend’s apartment because he “had complete dominion and control over the apartment and could exclude others from it,” 439 U.S., at 149. Jus- tice Powell’s observation was also consistent with the majority’s explanation that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude,” id., at 144, n. 12, an explanation tied to the majority’s discussion of Jones. The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. Tr. of Oral Arg. 48–49. 2 The Government further stresses that Byrd’s driving the rental car violated the rental agreement that Reed signed, and it contends this violation meant Byrd could not have had any basis for claiming an expectation of privacy in the rental car at the time of the search. As anyone who has rented a car knows, car-rental agreements are filled with long lists of restrictions. Examples include prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car—as even the Government agrees. Brief for United States 32. Despite this concession, the Government argues that permitting an unauthorized driver to take the wheel of a rental car is a breach different in kind from these others, so serious that the rental company would consider the agreement “void” the moment an unauthorized driver takes the wheel. Id., at 4, 15, 16, 27. To begin with, that is not what the contract says. It states: “Permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement. This may result in any and all coverage otherwise provided by the rental agreement being void and my being fully responsible for all loss or damage, including liability to third parties.” App. 24 (emphasis deleted). Putting the Government’s misreading of the contract aside, there may be countless innocuous reasons why an 12 BYRD v. UNITED STATES Opinion of the Court unauthorized driver might get behind the wheel of a rental car and drive it—perhaps the renter is drowsy or inebriated and the two think it safer for the friend to drive them to their destination. True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between pri- vate parties—violators might pay additional fees, lose insurance coverage, or assume liability for damage result- ing from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she other- wise has lawful possession of and control over the car. 3 The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualifi- cation of Byrd’s proposed rule comes into play. Rakas makes clear that “ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legal- ity of the search.” 439 U.S., at 141, n. 9. “A burglar plying his trade in a summer cabin during the off season,” for example, “may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’ ” Id., at 143, n. 12. Likewise, “a person present in a stolen automobile at the time of the search may [not] object to the lawfulness of the search of the automobile.” Id., at 141, n. 9. No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car. On this point, in its merits brief, the Government as- Cite as: 584 U. S. ____ (2018) 13 Opinion of the Court serts that, on the facts here, Byrd should have no greater expectation of privacy than a car thief because he inten- tionally used a third party as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime. This argument is premised on the Government’s inference that Byrd knew he would not have been able to rent the car on his own, because he would not have satisfied the rental company’s requirements based on his criminal record, and that he used Reed, who had no intention of using the car for her own purposes, to procure the car for him to transport heroin to Pittsburgh. It is unclear whether the Government’s allegations, if true, would constitute a criminal offense in the acquisition of the rental car under applicable law. And it may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright. The Government did not raise this argument in the District Court or the Court of Appeals, however. It relied instead on the sole fact that Byrd lacked authorization to drive the car. And it is unclear from the record whether the Government’s inferences paint an accurate picture of what occurred. Because it was not addressed in the Dis- trict Court or Court of Appeals, the Court declines to reach this question. The proper course is to remand for the argument and potentially further factual development to be considered in the first instance by the Court of Appeals or by the District Court. IV The Government argued in its brief in opposition to certiorari that, even if Byrd had a Fourth Amendment interest in the rental car, the troopers had probable cause to believe it contained evidence of a crime when they 14 BYRD v. UNITED STATES Opinion of the Court initiated their search. If that were true, the troopers may have been permitted to conduct a warrantless search of the car in line with the Court’s cases concerning the auto- mobile exception to the warrant requirement. See, e.g., Acevedo, 500 U.S., at 580. The Court of Appeals did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. It is worth noting that most courts analyzing the ques- tion presented in this case, including the Court of Appeals here, have described it as one of Fourth Amendment “standing,” a concept the Court has explained is not dis- tinct from the merits and “is more properly subsumed under substantive Fourth Amendment doctrine.” Rakas, supra, at 139. The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 129 (2011) (“To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution”); see also Rakas, supra, at 138–140. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doc- trine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim. On remand, then, the Court of Appeals is not required to assess Byrd’s reason- able expectation of privacy in the rental car before, in its discretion, first addressing whether there was probable cause for the search, if it finds the latter argument has been preserved. Cite as: 584 U. S. ____ (2018) 15 Opinion of the Court V Though new, the fact pattern here continues a well- traveled path in this Court’s Fourth Amendment jurispru- dence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful pos- session or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudu- lent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. The Court of Appeals has discretion as to the order in which these questions are best addressed. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 584 U. S. ____ (2018) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–1371 _________________ TERRENCE BYRD, PETITIONER v.

In September 2014, Pennsylvania State Troopers pulled over a car driven by petitioner Terrence Byrd. Byrd was the only person in the car. In the course of the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an author- ized driver. For this reason, the troopers told Byrd they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U.S. C. and possession of body armor by a prohibited person in violation of 18 U.S. C. Byrd moved to suppress the evidence as the fruit of an unlawful search. The United States District Court for the Middle District of Pennsylvania denied the motion, and the Court of Appeals for the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. Based on this conclusion, it appears 2 BYRD v. UNITED STATES Opinion of the Court that both the District Court and Court of Appeals deemed it unnecessary to consider whether the troopers had prob- able cause to search the car. This Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an author- ized driver on the rental agreement. The Court now holds that, as a general rule, someone in otherwise lawful pos- session and control of a rental car has a reasonable expec- tation of privacy in it even if the rental agreement does not list him or her as an authorized driver. The Court concludes a remand is necessary to address in the first instance the Government’s argument that this general rule is inapplicable because, in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy. It is necessary to remand as well to determine whether, even if Byrd had a right to object to the search, probable cause justified it in any event. I On September 17, 2014, petitioner Terrence Byrd and Latasha Reed drove in Byrd’s Honda Accord to a Budget car-rental facility in Wayne, New Jersey. Byrd stayed in the parking lot in the Honda while Reed went to the Budget desk and rented a Ford Fusion. The agreement Reed signed required her to certify that she had a valid driver’s license and had not committed certain vehicle- related offenses within the previous three years. An ad- dendum to the agreement, which Reed initialed, provides the following restriction on who may drive the rental car: “I understand that the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the renter’s permission, while on company business), or a person Cite as: 584 U. S. (2018) 3 Opinion of the Court who appears at the time of the rental and signs an Ad- ditional Driver Form. These other drivers must also be at least 25 years old and validly licensed. “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.” App. 19. In filling out the paperwork for the rental agreement, Reed did not list an additional driver. With the rental keys in hand, Reed returned to the parking lot and gave them to Byrd. The two then left the facility in separate cars—she in his Honda, he in the rental car. Byrd returned to his home in Patterson, New Jersey, and put his personal belongings in the trunk of the rental car. Later that afternoon, he departed in the car alone and headed toward Pittsburgh, Pennsylvania. After driving nearly three hours, or roughly half the distance to Pittsburgh, Byrd passed State Trooper David Long, who was parked in the median of Interstate 81 near Harrisburg, Pennsylvania. Long was suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car. Long knew the Ford Fusion was a rental car because one of its windows contained a barcode. Based on these observations, he decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction. When Long approached the passenger window of Byrd’s car to explain the basis for the stop and to ask for identifi- cation, Byrd was “visibly nervous” and “was shaking and 4 BYRD v. UNITED STATES Opinion of the Court had a hard time obtaining his driver’s license.” He handed an interim license and the rental agreement to Long, stating that a friend had rented the car. Long re- turned to his vehicle to verify Byrd’s license and noticed Byrd was not listed as an additional driver on the rental agreement. Around this time another trooper, Travis Martin, arrived at the scene. While Long processed Byrd’s license, Martin conversed with Byrd, who again stated that a friend had rented the vehicle. After Martin walked back to Long’s patrol car, Long commented to Martin that Byrd was “not on the renter agreement,” to which Martin replied, “yeah, he has no expectation of privacy.” 3 App. to Brief for Appellant in No. 16–1509 (CA3), at 21:40. A computer search based on Byrd’s identification re- turned two different names. Further inquiry suggested the other name might be an alias and also revealed that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant in New Jersey for a probation violation. After learning that New Jersey did not want Byrd arrested for extradition, the troopers asked Byrd to step out of the vehicle and patted him down. Long asked Byrd if he had anything illegal in the car. When Byrd said he did not, the troopers asked for his consent to search the car. At that point Byrd said he had a “blunt” in the car and offered to retrieve it for them. The officers understood “blunt” to mean a marijuana cigarette. They declined to let him retrieve it and continued to seek his consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The troopers then opened the passenger and driver doors and began a thorough search of the passenger compartment. Martin proceeded from there to search the car’s trunk, including by opening up and taking things out of a large cardboard box, where he found a laundry bag containing body armor. At this point, the troopers decided to detain Cite as: 584 U. S. (2018) 5 Opinion of the Court Byrd. As Martin walked toward Byrd and said he would be placing him in handcuffs, Byrd began to run away. A third trooper who had arrived on the scene joined Long and Martin in pursuit. When the troopers caught up to Byrd, he surrendered and admitted there was heroin in the car. Back at the car, the troopers resumed their search of the laundry bag and found 49 bricks of heroin. In pretrial proceedings Byrd moved to suppress the evidence found in the trunk of the rental car, arguing that the search violated his Fourth Amendment rights. Al- though Long contended at a suppression hearing that the troopers had probable cause to search the car after Byrd stated it contained marijuana, the District Court denied Byrd’s motion on the ground that Byrd lacked “standing” to contest the search as an initial matter, 2015 WL 5038455, *2 (MD Pa., Aug. 26, 2015) ). Byrd later entered a conditional guilty plea, reserving the right to appeal the suppression ruling. The Court of Appeals affirmed in a brief summary opin- ion. As relevant here, the Court of Appeals recognized that a “circuit split exists as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement”; but it noted that Circuit precedent already had “spoken as to this issue and determined such a person has no expec- tation of privacy and therefore no standing to challenge a search of the vehicle.” at 150 (citing at 167–168). The Court of Appeals did not reach the probable-cause question. This Court granted Byrd’s petition for a writ of certio- rari, 582 U. S. to address the conflict among the Courts of Appeals over whether an unauthorized driver has a reasonable expectation of privacy in a rental car. Compare United (CA5 6 BYRD v. UNITED STATES Opinion of the Court 2003) (per curiam); United 119 (CA4 1994); United 887–888 with United States v. Smith, 263 F.3d 571, 581–587 (CA6 2001); at – 168, and with United 1196–1199 (CA9 2006); United States v. Best, 135 F.3d 1223, 1225 (CA8 19). II Few protections are as essential to individual liberty as the right to be free from unreasonable searches and sei- zures. The Framers made that right explicit in the Bill of Rights following their experience with the indignities and invasions of privacy wrought by “general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence.” Ever mindful of the Fourth Amendment and its history, the Court has viewed with disfavor practices that permit “police officers unbridled discretion to rummage at will among a person’s private effects.” Arizona v. Gant, 556 U.S. 332, 345 (2009). This concern attends the search of an automobile. See The Court has acknowledged, however, that there is a diminished expectation of privacy in automobiles, which often permits officers to dispense with obtaining a warrant before con- ducting a lawful search. See, e.g., Whether a warrant is required is a separate question from the one the Court addresses here, which is whether the person claiming a constitutional violation “has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.” Answering that question requires examination of whether the person claiming the Cite as: 584 U. S. (2018) 7 Opinion of the Court constitutional violation had a “legitimate expectation of privacy in the premises” searched. “Expecta- tions of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest.” Still, “property concepts” are instructive in “determining the presence or absence of the privacy interests protected by that Amendment.” Indeed, more recent Fourth Amendment cases have clarified that the test most often associated with legiti- mate expectations of privacy, which was derived from the second Justice Harlan’s concurrence in supplements, rather than displaces, “the traditional property-based understanding of the Fourth Amendment.” Florida v. Jardines, 569 U.S. 1, 11 (2013). Perhaps in light of this clarification, Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Ap- peals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” it is generally unwise to consider arguments in the first in- stance, and the Court declines to reach Byrd’s contention that he was a second bailee. Reference to property concepts, however, aids the Court in assessing the precise question here: Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement? 8 BYRD v. UNITED STATES Opinion of the Court III A One who owns and possesses a car, like one who owns and possesses a house, almost always has a reasonable expectation of privacy in it. More difficult to define and delineate are the legitimate expectations of privacy of others. On the one hand, as noted above, it is by now well estab- lished that a person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it. See ; Katz, ; (1968); On the other hand, it is also clear that legitimate pres- ence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it “creates too broad a gauge for measurement of Fourth Amendment rights.” ; see also (“We would not wish to be understood as saying that legitimate presence on the premises is irrelevant to one’s expectation of privacy, but it cannot be deemed controlling”); (19). Although the Court has not set forth a single metric or exhaustive list of considerations to resolve the circum- stances in which a person can be said to have a reasonable expectation of privacy, it has explained that “[l]egitimation of expectations of privacy by law must have a source out- side of the Fourth Amendment, either by reference to concepts of real or personal property law or to understand- ings that are recognized and permitted by society.” 439 U.S., The two concepts in cases like this one are often linked. “One of the main rights attach- ing to property is the right to exclude others,” and, in the main, “one who owns or lawfully possesses or controls Cite as: 584 U. S. (2018) 9 Opinion of the Court property will in all likelihood have a legitimate expecta- tion of privacy by virtue of the right to exclude.” (citing 2 W. Blackstone, Commentaries on the Laws of England, ch. 1). This general property-based concept guides resolution of this case. B Here, the Government contends that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. This per se rule rests on too restrictive a view of the Fourth Amendment’s protections. Byrd, by contrast, contends that the sole occupant of a rental car always has an expectation of privacy in it based on mere possession and control. There is more to recom- mend Byrd’s proposed rule than the Government’s; but, without qualification, it would include within its ambit thieves and others who, not least because of their lack of any property-based justification, would not have a reason- able expectation of privacy. 1 Stripped to its essentials, the Government’s position is that only authorized drivers of rental cars have expecta- tions of privacy in those vehicles. This position is based on the following syllogism: Under passengers do not have an expectation of privacy in an automobile glove compartment or like places; an unauthorized driver like Byrd would have been the passenger had the renter been driving; and the unauthorized driver cannot obtain greater protection when he takes the wheel and leaves the renter behind. The flaw in this syllogism is its major premise, for it is a misreading of The Court in did not hold that passengers cannot have an expectation of privacy in automobiles. To the contrary, the Court disclaimed any intent to hold “that a 10 BYRD v. UNITED STATES Opinion of the Court passenger lawfully in an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it.” n. 17 (internal quotation marks omitted). The Court instead rejected the argument that legitimate presence alone was sufficient to assert a Fourth Amendment interest, which was fatal to the petitioners’ case there because they had “claimed only that they were ‘legitimately on [the] premises’ and did not claim that they had any legitimate expectation of privacy in the areas of the car which were searched.” What is more, the Government’s syllogism is beside the point, because this case does not involve a passenger at all but instead the driver and sole occupant of a rental car. As Justice Powell observed in his concurring opinion in a “distinction may be made in some circum- stances between the Fourth Amendment rights of passen- gers and the rights of an individual who has exclusive control of an automobile or of its locked compartments.” This situation would be similar to the defend- ant in who, as notes, had a reasonable expectation of privacy in his friend’s apartment because he “had complete dominion and control over the apartment and could exclude others from it,” Jus- tice Powell’s observation was also consistent with the majority’s explanation that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude,” an explanation tied to the majority’s discussion of The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of Cite as: 584 U. S. (2018) 11 Opinion of the Court the defendant in owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. Tr. of Oral Arg. 48–49. 2 The Government further stresses that Byrd’s driving the rental car violated the rental agreement that Reed signed, and it contends this violation meant Byrd could not have had any basis for claiming an expectation of privacy in the rental car at the time of the search. As anyone who has rented a car knows, car-rental agreements are filled with long lists of restrictions. Examples include prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car—as even the Government agrees. Brief for United States 32. Despite this concession, the Government argues that permitting an unauthorized driver to take the wheel of a rental car is a breach different in kind from these others, so serious that the rental company would consider the agreement “void” the moment an unauthorized driver takes the wheel. To begin with, that is not what the contract says. It states: “Permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement. This may result in any and all coverage otherwise provided by the rental agreement being void and my being fully responsible for all loss or damage, including liability to third parties.” App. 24 (emphasis deleted). Putting the Government’s misreading of the contract aside, there may be countless innocuous reasons why an 12 BYRD v. UNITED STATES Opinion of the Court unauthorized driver might get behind the wheel of a rental car and drive it—perhaps the renter is drowsy or inebriated and the two think it safer for the friend to drive them to their destination. True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between pri- vate parties—violators might pay additional fees, lose insurance coverage, or assume liability for damage result- ing from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she other- wise has lawful possession of and control over the car. 3 The central inquiry at this point turns on the concept of lawful possession, and this is where an important qualifi- cation of Byrd’s proposed rule comes into play. makes clear that “ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legal- ity of the search.” n. 9. “A burglar plying his trade in a summer cabin during the off season,” for example, “may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as ‘legitimate.’ ” n. 12. Likewise, “a person present in a stolen automobile at the time of the search may [not] object to the lawfulness of the search of the automobile.” No matter the degree of possession and control, the car thief would not have a reasonable expectation of privacy in a stolen car. On this point, in its merits brief, the Government as- Cite as: 584 U. S. (2018) 13 Opinion of the Court serts that, on the facts here, Byrd should have no greater expectation of privacy than a car thief because he inten- tionally used a third party as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime. This argument is premised on the Government’s inference that Byrd knew he would not have been able to rent the car on his own, because he would not have satisfied the rental company’s requirements based on his criminal record, and that he used Reed, who had no intention of using the car for her own purposes, to procure the car for him to transport heroin to Pittsburgh. It is unclear whether the Government’s allegations, if true, would constitute a criminal offense in the acquisition of the rental car under applicable law. And it may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright. The Government did not raise this argument in the District Court or the Court of Appeals, however. It relied instead on the sole fact that Byrd lacked authorization to drive the car. And it is unclear from the record whether the Government’s inferences paint an accurate picture of what occurred. Because it was not addressed in the Dis- trict Court or Court of Appeals, the Court declines to reach this question. The proper course is to remand for the argument and potentially further factual development to be considered in the first instance by the Court of Appeals or by the District Court. IV The Government argued in its brief in opposition to certiorari that, even if Byrd had a Fourth Amendment interest in the rental car, the troopers had probable cause to believe it contained evidence of a crime when they 14 BYRD v. UNITED STATES Opinion of the Court initiated their search. If that were true, the troopers may have been permitted to conduct a warrantless search of the car in line with the Court’s cases concerning the auto- mobile exception to the warrant requirement. See, e.g., The Court of Appeals did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. It is worth noting that most courts analyzing the ques- tion presented in this case, including the Court of Appeals here, have described it as one of Fourth Amendment “standing,” a concept the Court has explained is not dis- tinct from the merits and “is more properly subsumed under substantive Fourth Amendment doctrine.” The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition (“To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution”); see also at 138–140. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doc- trine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim. On remand, then, the Court of Appeals is not required to assess Byrd’s reason- able expectation of privacy in the rental car before, in its discretion, first addressing whether there was probable cause for the search, if it finds the latter argument has been preserved. Cite as: 584 U. S. (2018) 15 Opinion of the Court V Though new, the fact pattern here continues a well- traveled path in this Court’s Fourth Amendment jurispru- dence. Those cases support the proposition, and the Court now holds, that the mere fact that a driver in lawful pos- session or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. The Court leaves for remand two of the Government’s arguments: that one who intention- ally uses a third party to procure a rental car by a fraudu- lent scheme for the purpose of committing a crime is no better situated than a car thief; and that probable cause justified the search in any event. The Court of Appeals has discretion as to the order in which these questions are best addressed. * * * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 584 U. S. (2018) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–1371 TERRENCE BYRD, PETITIONER v.

Justice Thomas

concurring

Byrd v. United States

2018-05-14

https://www.courtlistener.com/opinion/4497658/byrd-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4497658/

2017-033

Although I have serious doubts about the “reasonable expectation of privacy” test from Katz v. United States, 389 U.S. 347, 360–361 (1967) (Harlan, J., concurring), I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially “unwise” to reach that issue, ante, at 7, because the parties fail to adequately address several threshold questions. The Fourth Amendment guarantees the people’s right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” With this language, the Fourth Amendment gives “each person . . . the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Minnesota v. Carter, 525 U.S. 83, 92 (1998) (Scalia, J., concurring). The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do indi- 2 BYRD v. UNITED STATES THOMAS, J., concurring viduals need before something can be considered “their . . . effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropri- ate case, I would welcome briefing and argument on these questions. Cite as: 584 U. S. ____ (2018) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 16–1371 _________________ TERRENCE BYRD, PETITIONER v.

Although I have serious doubts about the “reasonable expectation of privacy” test from I join the Court’s opinion because it correctly navigates our precedents, which no party has asked us to reconsider. As the Court notes, Byrd also argued that he should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car. I agree with the Court’s decision not to review this argument in the first instance. In my view, it would be especially “unwise” to reach that issue, ante, at 7, because the parties fail to adequately address several threshold questions. The Fourth Amendment guarantees the people’s right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” With this language, the Fourth Amendment gives “each person the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.” Minnesota v. Carter, The issue, then, is whether Byrd can prove that the rental car was his effect. That issue seems to turn on at least three threshold questions. First, what kind of property interest do indi- 2 BYRD v. UNITED STATES THOMAS, J., concurring viduals need before something can be considered “their effec[t]” under the original meaning of the Fourth Amendment? Second, what body of law determines whether that property interest is present—modern state law, the common law of 1791, or something else? Third, is the unauthorized use of a rental car illegal or otherwise wrongful under the relevant law, and, if so, does that illegality or wrongfulness affect the Fourth Amendment analysis? The parties largely gloss over these questions, but the answers seem vitally important to assessing whether Byrd can claim that the rental car is his effect. In an appropri- ate case, I would welcome briefing and argument on these questions. Cite as: 584 U. S. (2018) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 16–1371 TERRENCE BYRD, PETITIONER v.

Justice Scalia

majority

Wal-Mart Stores, Inc. v. Dukes

2011-06-20

https://www.courtlistener.com/opinion/219618/wal-mart-stores-inc-v-dukes/

https://www.courtlistener.com/api/rest/v3/clusters/219618/

2010-070

We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminat ing against women. In addition to injunctive and declara tory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 2 WAL-MART STORES, INC. v. DUKES Opinion of the Court 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people. Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges. Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied. B The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court amended, 42 U.S. C. §2000e–1 et seq.1 Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is. Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a. The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy. These plaintiffs, respondents here, do not allege that —————— 1 The complaint included seven named plaintiffs, but only three re main part of the certified class as narrowed by the Court of Appeals. 4 WAL-MART STORES, INC. v. DUKES Opinion of the Court Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U.S. C. §2000e–2(k). And, respondents say, because Wal- Mart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages. Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action. C Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that: “(1) the class is so numerous that joinder of all mem- bers is impracticable, “(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and ade quately protect the interests of the class” (paragraph Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2 Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social —————— 2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications . . . that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudica tions or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us. 6 WAL-MART STORES, INC. v. DUKES Opinion of the Court framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. 603 F.3d 571, 601 (CA9 2010) (en banc). Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed class.3 D A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F.3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole —————— 3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the ac tion and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Id., at 173. Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4 Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F.3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F.3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted). —————— 4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to predominate. 603 F.3d, at 621. Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate. It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at 623 (emphasis added). 8 WAL-MART STORES, INC. v. DUKES Opinion of the Court We granted certiorari. 562 U. S. ___ (2010). II The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plain tiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 156 (1982) (quoting General Tele phone Co. of Northwest v. EEOC, 446 U.S. 318, 330 (1980)). A The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is —————— 5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the inter ests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Fal Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification . . . is not the rais ing of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen —————— con, 457 U.S. 147, 157–158, n. 13 (1982). In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate representation requirements of Rule 23(a). 10 WAL-MART STORES, INC. v. DUKES Opinion of the Court erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the gen eration of common answers.” Nagareda, supra, at 132. Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U.S., at 160, and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted).6 —————— 6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), is sometimes mistakenly cited to the con trary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see id., at 165), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676–677 (CA7 2001) (Easterbrook, J.). In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Cooper v. Federal Reserve Bank of Rich mond, 467 U.S. 867, 876 (1984). Here respondents wish —————— Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individ ual members” would often be an insuperable barrier to class certifica tion, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plain tiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that . . . discrimination was the com pany’s standard operating procedure[,] the regular rather than the unusual practice.” Teamsters v. United States, 431 U.S. 324, 358 (1977); see also Franks v. Bowman Transp. Co., 424 U.S. 747, 772 (1976). If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” Teamsters, supra, at 361. 12 WAL-MART STORES, INC. v. DUKES Opinion of the Court to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. B This Court’s opinion in Falcon describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U.S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typi cal of the class claims.” Id., at 157–158. Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard. The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 14 WAL-MART STORES, INC. v. DUKES Opinion of the Court U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.” C The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common —————— 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analy sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); id., at 1745, 1747 (“[A] social framework necessarily contains only general state ments about reliable patterns of relations among variables . . . and goes no further. . . . Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); id., at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal- Mart’s stores nationwide for the multi-year class period”). Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988). To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U.S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions. Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way 16 WAL-MART STORES, INC. v. DUKES Opinion of the Court without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short. The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F.3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid. Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U.S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F.3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which Cite as: 564 U. S. ____ (2011) 17 Opinion of the Court respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” Watson, 487 U.S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) (approv ing that statement), superseded by statute on other grounds, 42 U.S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U.S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial 18 WAL-MART STORES, INC. v. DUKES Opinion of the Court discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F.2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus repre sented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F.2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 stores. 603 F.3d, at 634 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9 The dissent misunderstands the nature of the foregoing —————— 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a gen eral policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Cite as: 564 U. S. ____ (2011) 19 Opinion of the Court analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10 In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, —————— 10 For this reason, there is no force to the dissent’s attempt to distin guish Falcon on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U.S., at 162 (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment prac tices do not “touch and concern all members of the class.” 20 WAL-MART STORES, INC. v. DUKES Opinion of the Court at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an Cite as: 564 U. S. ____ (2011) 21 Opinion of the Court individualized award of monetary damages. That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U.S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U.S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F.2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F.2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U.S. 979 (1956). Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief —————— 11 Rule 23(b)(1) applies where separate actions by or against individ ual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997), or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the 22 WAL-MART STORES, INC. v. DUKES Opinion of the Court sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U.S., at 614 (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U.S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into —————— individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, . . . in which numerous persons make claims against a fund insufficient to satisfy all claims,” Amchem, supra, at 614. Cite as: 564 U. S. ____ (2011) 23 Opinion of the Court whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to 24 WAL-MART STORES, INC. v. DUKES Opinion of the Court establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed Cite as: 564 U. S. ____ (2011) 25 Opinion of the Court by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U.S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see §2000e– 26 WAL-MART STORES, INC. v. DUKES Opinion of the Court 5(g)(2)(A)). C In Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A). Cite as: 564 U. S. ____ (2011) 27 Opinion of the Court We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U.S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” Id., at 362. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F.3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U.S. C. §2072(b); see Ortiz, 527 U.S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class. * * * The judgment of the Court of Appeals is Reversed. Cite as: 564 U. S. ____ (2011) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES _________________ No. 10–277 _________________ WAL-MART STORES, INC., PETITIONER v. BETTY DUKES ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 20, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part. The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola tion of Title VII, 42 U.S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com pensatory damages—and that a class action is “superior” to other modes of adjudication. Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). —————— 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 2 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. In so ruling, the Court imports into the Rule 23(a) de termination concerns properly addressed in a Rule 23(b)(3) assessment. I A Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality re quirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Diction ary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved . . . [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either —————— 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representa tive parties will fairly and adequately protect the interests of the class.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolu tion of those issues. Cite as: 564 U. S. ____ (2011) 3 Opinion of GINSBURG, J. of fact or of law, the resolution of which will advance the determination of the class members’ claims.3 B The District Court, recognizing that “one significant is sue common to the class may be sufficient to warrant cer tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonal ity. See Califano v. Yamasaki, 442 U.S. 682, 703 (1979) (“[M]ost issues arising under Rule 23 . . . [are] committed in the first instance to the discretion of the district court.”). The District Court certified a class of “[a]ll women em ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in ternal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making em ployment decisions such as . . . promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male manage rial workforce” using “arbitrary and subjective criteria.” Ibid. Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em —————— 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . . questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. 4 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployees be willing to relocate.” Id., at 56a. Absent in struction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis sion, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id., at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Ibid.; cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 643 (2007) (GINSBURG, J., dissenting). The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com mon to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store manage ment “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id., at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Ibid. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal- Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter uncon scious bias on the part of supervisors. See id., at 146–147. Cite as: 564 U. S. ____ (2011) 5 Opinion of GINSBURG, J. Wal-Mart’s supervisors do not make their discretion ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed . . . corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through out the company, monitoring of stores “on a close and con stant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into all stores.” Id., at 151–153 (internal quotation marks omitted). The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suf fused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in ternal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu tives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certifica tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 (internal quotation marks omitted). Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con —————— 4 The majority purports to derive from Teamsters v. United States, 431 U.S. 324 (1977), a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class. Ante, at 17–18. Teamsters, the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, 431 U.S., at 339; that decision can hardly be said to establish a nu merical floor before anecdotal evidence can be taken into account. 6 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of dis crimination.” Id., at 155–160. C The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis crimination is heightened when those managers are pre dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemble those in one of the —————— 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 (internal quotation marks omitted). In fact, his regression analyses showed there were disparities within stores. The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi cians through auditions open to all comers. Id., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id., at 738. Cite as: 564 U. S. ____ (2011) 7 Opinion of GINSBURG, J. prototypical cases in this area, Leisner v. New York Tel. Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” Id., at 365 (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” Ibid. (internal quotation marks omitted). It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own. We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 988, 991 (1988). But see ante, at 17 (“[P]roving that [a] discretionary system has produced a . . . disparity is not enough.”). In Watson, as here, an employer had given its managers large author ity over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion sys tem” caused a discriminatory effect based on race. 487 U.S., at 984 (internal quotation marks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id., at 982. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid. Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” Id., at 990–991. See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989) (recogniz ing “the use of ‘subjective decision making’ ” as an “em 8 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis trict Court adequately demonstrated that resolving those claims would necessitate examination of particular poli cies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for class action certification, demands nothing further. II A The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pro posed class” that “have the potential to impede the genera tion of common answers.” Ante, at 9–10 (quoting Na gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted). The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac tice §23.23[2], p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi —————— 7 The Court places considerable weight on General Telephone Co. of Southwest v. Falcon, 457 U.S. 147 (1982). Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in Falcon alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and Cite as: 564 U. S. ____ (2011) 9 Opinion of GINSBURG, J. fication requires, in addition to the four 23(a) findings, de terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is supe rior to other available methods for . . . adjudicating the controversy.”8 The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor Nagareda, whose “dissimi —————— failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant class. 457 U.S., at 162 (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intention ally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ibid., appropriate for facially neutral prac tices. “[T]he only commonality [wa]s that respondent is a Mexican- American and he seeks to represent a class of Mexican-Americans.” Ibid. Here the same practices touch and concern all members of the class. 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class mem bers would create a risk of . . . inconsistent or varying adjudications . . . [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members . . . ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). 10 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3). Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari ties” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See Amchem Products, 521 U.S., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki, 442 U.S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual back ground of each claim will affect the outcome of the legal issue”). For example, in Franks v. Bowman Transp. Co., 424 U.S. 747 (1976), a Rule 23(b)(2) class of African- American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. Id., at 772 (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc —————— 9 Cf.supra, at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question . . . common to the members of the class” (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). Cite as: 564 U. S. ____ (2011) 11 Opinion of GINSBURG, J. tive] relief to the entire class.” Ibid. B The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class mem bers, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15. Wal-Mart’s delegation of discretion over pay and promo tions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in vari ous ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes. 487 U.S., at 990–991; see su pra, at 7–8. A finding that Wal-Mart’s pay and promo tions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking indi vidual remedies for company-wide discrimination. Team sters v. United States, 431 U.S. 324, 359 (1977); see Albe marle Paper Co. v. Moody, 422 U.S. 405, 415–423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement . . . for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion

We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminat ing against women. In addition to injunctive and declara tory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores through out the country: Discount Stores, Supercenters, Neighbor hood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 2 WAL-MART STORES, INC. v. DUKES Opinion of the Court 40 and 53 separate departments and 80 to 500 staff posi tions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people. Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may in crease the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employ ees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay with in preestablished ranges. Promotions work in a similar fashion. Wal-Mart per mits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant man ager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied. B The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three cur rent or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, as Cite as: 564 U. S. (2011) 3 Opinion of the Court amended, 42 U.S. C. et seq.1 Betty Dukes began working at a Pittsburg, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service man ager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infrac tions. Dukes also claims two male greeters in the Pitts burg store are paid more than she is. Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a. The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In she was fired for failure to comply with Wal-Mart’s timekeeping policy. These plaintiffs, respondents here, do not allege that —————— 1 The complaint included seven named plaintiffs, but only three re main part of the certified class as narrowed by the Court of Appeals. 4 WAL-MART STORES, INC. v. DUKES Opinion of the Court Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U.S. C. And, respondents say, because Wal- Mart is aware of this effect, its refusal to cabin its manag ers’ authority amounts to disparate treatment, see Their complaint seeks injunctive and de claratory relief, punitive damages, and backpay. It does not ask for compensatory damages. Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby mak ing every woman at the company the victim of one com mon discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action. C Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certifi cation must demonstrate, first, that: “(1) the class is so numerous that joinder of all mem- bers is impracticable, “(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative par ties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and ade quately protect the interests of the class” (paragraph Cite as: 564 U. S. (2011) 5 Opinion of the Court breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2 Invoking these provisions, respondents moved the Dis trict Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and man agement track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “ques tions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social —————— 2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudica tions or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us. 6 WAL-MART STORES, INC. v. DUKES Opinion of the Court framework analysis” of Wal-Mart’s “culture” and person nel practices, and concluded that the company was “vul nerable” to gender discrimination. (CA9 2010) (en banc). Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s require ments of commonality, typicality, and adequate represen tation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunc tive and declaratory relief, and second because the back pay claims could not be manageably tried as a class with out depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certi fied their proposed 3 D A divided en banc Court of Appeals substantially af firmed the District Court’s certification order. 603 F.3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” It also agreed with the District Court that the named plain tiffs’ claims were sufficiently typical of the class as a whole —————— 3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the ac tion and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Cite as: 564 U. S. (2011) 7 Opinion of the Court to satisfy Rule 23(a)(3), and that they could serve as ade quate class representatives, see Rule 23(a)(4). at – 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims.4 Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F.3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be em ployed in this case.” It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ib n. 56 —————— 4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” at (emphasis added). 8 WAL-MART STORES, INC. v. DUKES Opinion of the Court We granted certiorari. 562 U. S. (2010). II The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” 700–701 In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class ” East Tex. Motor Freight System, ). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plain tiff ’s claims.’ ” General Telephone Co. of Southwest v. (quoting General Tele phone Co. of (1980)). A The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the ” Rule 23(a)(2).5 That language is —————— 5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the inter ests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Fal Cite as: 564 U. S. (2011) 9 Opinion of the Court easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our manag ers have discretion over pay? Is that an unlawful em ployment practice? What remedies should we get? Recit ing these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to dem onstrate that the class members “have suffered the same injury,” This does not mean merely that they have all suffered a violation of the same pro vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification is not the rais ing of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen —————— con, In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate representation requirements of Rule 23(a). 10 WAL-MART STORES, INC. v. DUKES Opinion of the Court erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the gen eration of common answers.” Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” ; see (“[A]ctual, not presumed, conformance with Rule 23(a) remains indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted).6 —————— 6 A statement in one of our prior cases, 417 U.S. is sometimes mistakenly cited to the con trary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see ), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Cite as: 564 U. S. (2011) 11 Opinion of the Court Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See (Easterbrook, J.). In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Here respondents wish —————— Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individ ual members” would often be an insuperable barrier to class certifica tion, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plain tiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that discrimination was the com pany’s standard operating procedure[,] the regular rather than the unusual practice.” ; see also If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” 12 WAL-MART STORES, INC. v. DUKES Opinion of the Court to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. B This Court’s opinion in describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typi cal of the class claims.” –158. suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably Cite as: 564 U. S. (2011) 13 Opinion of the Court could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard. The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 7a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 14 WAL-MART STORES, INC. v. DUKES Opinion of the Court U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.” C The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common —————— 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analy sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); 1747 (“[A] social framework necessarily contains only general state ments about reliable patterns of relations among variables and goes no further. Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal- Mart’s stores nationwide for the multi-year class period”). Cite as: 564 U. S. (2011) 15 Opinion of the Court and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” at –991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U.S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions. Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way 16 WAL-MART STORES, INC. v. DUKES Opinion of the Court without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short. The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart [and] these disparities can be explained only by gender discrimination.” (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which Cite as: 564 U. S. (2011) 17 Opinion of the Court respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” ; accord, Wards Cove Packing (approv ing that statement), superseded by statute on other grounds, 42 U.S. C. That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In 431 U.S. 324 in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial 18 WAL-MART STORES, INC. v. DUKES Opinion of the Court discrimination from particular individuals. See at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, and the class itself consisted of around 334 persons, United overruled on other grounds, The 40 anecdotes thus repre sented roughly one account for every eight members of the Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” n. 15, which is what respondents must show to certify a companywide 9 The dissent misunderstands the nature of the foregoing —————— 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the ” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a gen eral policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Cite as: 564 U. S. (2011) 19 Opinion of the Court analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 ). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10 In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, —————— 10 For this reason, there is no force to the dissent’s attempt to distin guish on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment prac tices do not “touch and concern all members of the ” 20 WAL-MART STORES, INC. v. DUKES Opinion of the Court at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” 84 N. Y. U. L. Rev., In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an Cite as: 564 U. S. (2011) 21 Opinion of the Court individualized award of monetary damages. That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, in determining its meaning we have previously looked to the historical models on which the Rule was based, v. Fibreboard Corp., 527 U.S. 815, 841–845 (1999). As we observed in “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, ; Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., ; Frasier v. Board of Trustees of N.C., (NC 1955) (three-judge court), aff’d, Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief —————— 11 Rule 23(b)(1) applies where separate actions by or against individ ual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the 22 WAL-MART STORES, INC. v. DUKES Opinion of the Court sought must perforce affect the entire class at once, as in a (b)(2) For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” (quoting Advisory Committee’s Notes, 28 U.S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into —————— individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, in which numerous persons make claims against a fund insufficient to satisfy all claims,” at Cite as: 564 U. S. (2011) 23 Opinion of the Court whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to 24 WAL-MART STORES, INC. v. DUKES Opinion of the Court establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed Cite as: 564 U. S. (2011) 25 Opinion of the Court by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U.S. C. and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see 26 WAL-MART STORES, INC. v. DUKES Opinion of the Court 5(g)(2)(A)). C In (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay or any other equitable relief as the court deems appropriate.” 5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” 5(g)(2)(A). Cite as: 564 U. S. (2011) 27 Opinion of the Court We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings to determine the scope of individual relief.” 431 U.S., At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized –627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U.S. C. see a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) * * * The judgment of the Court of Appeals is Reversed. Cite as: 564 U. S. (2011) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 10–277 WAL-MART STORES, INC., PETITIONER v. BETTY DUKES ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 20, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part. The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola tion of Title VII, 42 U.S. C. et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com pensatory damages—and that a class action is “superior” to other modes of adjudication. Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). —————— 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 2 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. In so ruling, the Court imports into the Rule 23(a) de termination concerns properly addressed in a Rule 23(b)(3) assessment. I A Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the ”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality re quirement,” The Preexistence Principle and the Structure of the Class Action, n. 110 See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Diction ary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either —————— 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representa tive parties will fairly and adequately protect the interests of the ” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolu tion of those issues. Cite as: 564 U. S. (2011) 3 Opinion of GINSBURG, J. of fact or of law, the resolution of which will advance the determination of the class members’ claims.3 B The District Court, recognizing that “one significant is sue common to the class may be sufficient to warrant cer tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonal ity. See (“[M]ost issues arising under Rule 23 [are] committed in the first instance to the discretion of the district court.”). The District Court certified a class of “[a]ll women em ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in ternal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making em ployment decisions such as promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male manage rial workforce” using “arbitrary and subjective criteria.” Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em —————— 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. 4 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployees be willing to relocate.” at 56a. Absent in struction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis sion, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” ; cf. 643 (2007) (GINSBURG, J., dissenting). The District Court identified “systems for promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com mon to all class ” 222 F. R. D., at 149. The selection of employees for promotion to in-store manage ment “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal- Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter uncon scious bias on the part of supervisors. See at 146–147. Cite as: 564 U. S. (2011) 5 Opinion of GINSBURG, J. Wal-Mart’s supervisors do not make their discretion ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through out the company, monitoring of stores “on a close and con stant basis,” and “Wal-Mart TV,” “broadcas[t] into all ” at 151–153 (internal quotation marks omitted). The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suf fused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in ternal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu tives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certifica tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con —————— 4 The majority purports to derive from a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the Ante, at 17–18. the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, ; that decision can hardly be said to establish a nu merical floor before anecdotal evidence can be taken into account. 6 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked.5 The results, the District Court found, were sufficient to raise an “inference of dis crimination.” at 155–160. C The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis crimination is heightened when those managers are pre dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemble those in one of the —————— 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 In fact, his regression analyses showed there were disparities within The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi cians through auditions open to all comers. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Cite as: 564 U. S. (2011) 7 Opinion of GINSBURG, J. prototypical cases in this area, F. Supp. In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own. We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See v. Fort Worth Bank & Trust, But see ante, at 17 (“[P]roving that [a] discretionary system has produced a disparity is not enough.”). In as here, an employer had given its managers large author ity over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion sys tem” caused a discriminatory effect based on race. 487 U.S., at 984 Four different supervisors had declined, on separate occasions, to promote the employee. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” at –991. See also Wards Cove Packing (recogniz ing “the use of ‘subjective decision making’ ” as an “em 8 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis trict Court adequately demonstrated that resolving those claims would necessitate examination of particular poli cies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s Rule 23(a)(2), setting a necessary but not a sufficient criterion for class action certification, demands nothing further. II A The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pro posed class” that “have the potential to impede the genera tion of common answers.” Ante, at 9–10 (quoting Na gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted). The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac tice p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi —————— 7 The Court places considerable weight on General Telephone Co. of Southwest v. Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and Cite as: 564 U. S. (2011) 9 Opinion of GINSBURG, J. fication requires, in addition to the four 23(a) findings, de terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is supe rior to other available methods for adjudicating the controversy.”8 The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor whose “dissimi —————— failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intention ally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ib appropriate for facially neutral prac tices. “[T]he only commonality [wa]s that respondent is a Mexican- American and he seeks to represent a class of Mexican-Americans.” Here the same practices touch and concern all members of the 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class mem bers would create a risk of inconsistent or varying adjudications [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). 10 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3). Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari ties” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See 521 U.S., at n. 19 “does not have a predominance requirement”); Yamasaki, 442 U.S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual back ground of each claim will affect the outcome of the legal issue”). For example, in a Rule 23(b)(2) class of African- American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. at (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc —————— 9 Cf. at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question common to the members of the class” ). Cite as: 564 U. S. (2011) 11 Opinion of GINSBURG, J. tive] relief to the entire ” B The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class mem bers, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15. Wal-Mart’s delegation of discretion over pay and promo tions is a policy uniform throughout all The very nature of discretion is that people will exercise it in vari ous ways. A system of delegated discretion, held, is a practice actionable under Title VII when it produces discriminatory 487 U.S., at –991; see su pra, at 7–8. A finding that Wal-Mart’s pay and promo tions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking indi vidual remedies for company-wide discrimination. Team ; see Albe marle Paper –423 That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, 5(g)(2)(A) (barring backpay if a plaintiff “was refused advancement for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion

Justice Breyer

majority

Rehaif v. United States

2019-06-21

https://www.courtlistener.com/opinion/4631841/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4631841/

A federal statute, 18 U.S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” Ibid. A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2). At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See 888 F.3d 1138, 1148 (2018). The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. Id., at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under §922(g) and §924(a)(2), the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605 (1994). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); see also Morissette v. United States, 342 U.S. 246, 256–258 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See Staples, 511 U.S., at 606. But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985) (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of §924(a)(2) says that “[w]hoever knowingly violates” certain subsec- tions of §922, including §922(g), “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of §922(g) in turn provides that it “shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in §924(a)(2) modifies the verb “violates” and its direct object, which in this case is §922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” §922(g). With some here-irrelevant omis- sions, §922(g) makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. ___, ___– ___ (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See id., at ___ (slip op., at 16). Jurisdictional element aside, however, the text of §922(g) simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a Cite as: 588 U. S. ____ (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See id., at 659 (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to §922(g)’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. See United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g). B Beyond the text, our reading of §922(g) and §924(a)(2) is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- sette, 342 U.S., at 250. Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement Video, 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., id., at 70; Staples, 511 U.S., at 610; Liparota v. United States, 471 U.S. 419, 425 (1985); United States v. Bailey, 444 U.S. 394, 406, n. 6 (1980); United States v. United States Gypsum Co., 438 U.S. 422, 436 (1978); Morissette, 342 U.S., at 250–251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See Staples, 511 U.S., at 605. And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement Video, 513 U.S., at 70. Applying the word “knowingly” to the defendant’s status in §922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples, 511 U.S., at 611. It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United States v. Balint, 258 U.S. 250, 254 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See Staples, 511 U.S., at 606; Morissette, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Video, 513 U.S., at 72. Hence, this exception to the presumption Cite as: 588 U. S. ____ (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. §1924(a). Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. §861(a)(2). A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. §2251(b). We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement Video, 513 U.S., at 73. But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under §922(g) and §924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” §922(g)(1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See Staples, 511 U.S., at 615, n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U.S. 192, 199 (1991). This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”). Cite as: 588 U. S. ____ (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law §5.1(d), at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” 471 U.S., at 420 (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” Id., at 425, n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See ibid. This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, 52 Stat. 1250. In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, 82 Stat. 197. Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921, which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. ___, ___ (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, 606 F.2d 871, 874 (CA9 1979). But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, 496 F.2d 922, 926 (1974). And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. ____ (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. ___, ___ (2019) (slip op., at 10) (citing Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005)). We conclude that in a prosecution under 18 U.S. C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other §922(g) provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in §922(g) not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. ____ (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. §924(a)(2) “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. §922(g) “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance . . . ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) . . . has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. ____ (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–9560 _________________ HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

A federal statute, 18 U.S. C. provides that “[i]t shall be unlawful” for certain individuals to possess fire- arms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.” A separate provision, adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.) The question here concerns the scope of the word “know- ingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the rele- vant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a de- fendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. 2 REHAIF v. UNITED STATES Opinion of the Court I Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be termi- nated unless he transferred to a different university or left the country. App. to Pet. for Cert. 3a. Rehaif did neither. Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of and At the close of Rehaif ’s trial, the judge instructed the jury (over Rehaif ’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omit- ted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment. Rehaif appealed. He argued that the judge erred in instructing the jury that it did not need to find that he knew he was in the country unlawfully. The Court of Appeals for the Eleventh Circuit, however, concluded that the jury instruction was correct, and it affirmed Rehaif ’s conviction. See The Court of Appeals believed that the criminal law generally does not require a defendant to know his own status, and further observed that no court of appeals had required the Gov- ernment to establish a defendant’s knowledge of his status in the analogous context of felon-in-possession prosecu- tions. at 1145–1146. We granted certiorari to consider whether, in prosecu- tions under and the Government must prove that a defendant knows of his status as a person barred from possessing a firearm. We now reverse. Cite as: 588 U. S. (2019) 3 Opinion of the Court II Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See v. United States, 511 U.S. 600, 605 (4). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Inc., 513 U.S. 64, 72 (4); see also We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014). We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statu- tory text. See But the pre- sumption applies with equal or greater force when Con- gress includes a general scienter provision in the statute itself. See ALI, Model Penal Code p. 22 (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distin- guishing among the material elements thereof, such provi- sion shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”). A Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statu- tory text supports the presumption. The text of says that “[w]hoever knowingly violates” certain subsec- tions of including “shall be” subject to penal- 4 REHAIF v. UNITED STATES Opinion of the Court ties of up to 10 years’ imprisonment. The text of in turn provides that it “shall be unlawful for any person being an alien illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.” The term “knowingly” in modifies the verb “violates” and its direct object, which in this case is The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” With some here-irrelevant omis- sions, makes possession of a firearm or ammuni- tion unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien ille- gally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “fire- arm or ammunition”). No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional ele- ments do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defend- ant’s conduct (normally, as here, through its Commerce Clause power). Luna Torres v. Lynch, 578 U. S. – (2016) (slip op., at 15–16). Because jurisdictional elements normally have nothing to do with the wrongful- ness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. See at (slip op., at 16). Jurisdictional element aside, however, the text of simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘know- ingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also (we “ordinarily read a Cite as: 588 U. S. (2019) 5 Opinion of the Court phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. See (ALITO, J., concurring in part). And everyone agrees that the word “knowingly” applies to ’s possession ele- ment, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second element but not the first. See United States v. Games-Perez, (Gorsuch, J., concurring). To the contrary, we think that by specify- ing that a defendant may be convicted only if he “knowingly violates” Congress intended to require the Government to establish that the defendant knew he violated the material elements of B Beyond the text, our reading of and is consistent with a basic principle that underlies the crimi- nal law, namely, the importance of showing what Black- stone called “a vicious will.” 4 W. Blackstone, Commen- taries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is crimi- nal only if inflicted knowingly “is as universal and persis- tent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the nor- mal individual to choose between good and evil.” Moris- Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement 513 U.S., at 72–73, n. 3. The cases in which we have emphasized scienter’s im- portance in separating wrongful from innocent acts are 6 REHAIF v. UNITED STATES Opinion of the Court legion. See, e.g., ; ; ; United ; United (1978); Moris, –251. We have inter- preted statutes to include a scienter requirement even where the statutory text is silent on the question. See And we have interpreted stat- utes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement 513 U.S., Applying the word “knowingly” to the defendant’s status in helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”). We have sometimes declined to read a scienter require- ment into criminal statutes. See United But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regula- tory” or “public welfare” program and carry only minor penalties. See ; Moris, 342 U.S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Hence, this exception to the presumption Cite as: 588 U. S. (2019) 7 Opinion of the Court in favor of scienter does not apply. III The Government’s arguments to the contrary do not convince us that Congress sought to depart from the nor- mal presumption in favor of scienter. The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U.S. C. Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U.S. C. A third applies to a “parent [or] legal guardian” who al- lows his child to be used for child pornography. 18 U.S. C. We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful con- duct. X-Citement But in the stat- utes cited by the Government, the conduct prohibited— misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the de- fendant’s status. This difference assures us that the presumption in favor of scienter applies here even assum- ing the Government is right that these other statutes do not require knowledge of status. Nor do we believe that Congress would have expected defendants under and to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to 8 REHAIF v. UNITED STATES Opinion of the Court an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his un- lawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punish- able by imprisonment for a term exceeding one year.” (1) (emphasis added); see also Games-Perez, 667 F.3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See n. 11 (“knowledge can be inferred from circumstantial evidence”). The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. This maxim, however, normally applies where a defend- ant has the requisite mental state in respect to the ele- ments of the crime but claims to be “unaware of the exist- ence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. ; see also Model Penal Code at 27 (a mistake of law is a defense if the mistake negates the “knowledge required to establish a material element of the offense”). Cite as: 588 U. S. (2019) 9 Opinion of the Court Much of the confusion surrounding the ignorance-of-the- law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law at 585. We applied this distinction in Liparota, where we con- sidered a statute that imposed criminal liability on “who- ever knowingly uses, transfers, acquires, alters, or pos- sesses” food stamps “in any manner not authorized by the statute or the regulations.” (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.” at n. 9. We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law. See This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commenta- tors refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlaw- fully in the United States” does not have the guilty state of mind that the statute’s language and purposes require. The Government finally turns for support to the statu- tory and legislative history. Congress first enacted a crimi- nal statute prohibiting particular categories of persons from possessing firearms in 1938. See Federal Firearms Act, In 1968, Congress added new cate- gories of persons subject to the prohibition. See Omnibus Crime Control and Safe Streets Act, Then, in 1986, Congress passed the statute at issue here, the Fire- arms Owners’ Protection Act, note following 18 U.S. C. which reorganized the prohibition on firearm possession and added the language providing that only those who violate the prohibition “knowingly” may be 10 REHAIF v. UNITED STATES Opinion of the Court held criminally liable. The Government says that, prior to 1986, the courts had reached a consensus that the law did not require the Government to prove scienter regarding a defendant’s status. And the Government relies on the interpretive canon providing that when particular statutory language has received a settled judicial construction, and Congress subsequently reenacts that “same language,” courts should presume that Congress intended to ratify the judi- cial consensus. Helsinn Healthcare S. A. v. Teva Pharma- ceuticals USA, Inc., 586 U. S. (2019) (slip op., at 7). Prior to 1986, however, there was no definitive judicial consensus that knowledge of status was not needed. This Court had not considered the matter. As the Government says, most lower courts had concluded that the statute did not require knowledge of status. See, e.g., United States v. Pruner, But the Sixth Circuit had held to the contrary, specifically citing the risk that a defendant “may not be aware of the fact” that barred him from possessing a firearm. United States v. Renner, And the Fourth Circuit had found that knowledge of a defendant’s status was not needed because the statute “[b]y its terms” did not require knowledge of status. United States v. Williams, 588 F.2d 92 (1978) (per curiam). This last-mentioned circumstance is important. Any pre-1986 consensus involved the statute as it read prior to 1986—without any explicit scienter provision. But Con- gress in 1986 added a provision clarifying that a defendant could be convicted only if he violated the prohibition on firearm possession “knowingly.” This addition, which would serve no apparent purpose under the Government’s view, makes it all but impossible to draw any inference that Congress intended to ratify a pre-existing consensus when, in 1986, it amended the statute. Cite as: 588 U. S. (2019) 11 Opinion of the Court The Government points to the House Report on the legislation, which says that the 1986 statute would require the Government to prove “that the defendant’s conduct was knowing.” H. R. Rep. No. 99–495, p. 10 (1986) (em- phasis added). Although this statement speaks of “con- duct” rather than “status,” context suggests that the Re- port may have meant the former to include the latter. In any event, other statements suggest that the word “know- ingly” was intended to apply to both conduct and status. The Senate Report, for example, says that the proposed amendments sought to exclude “individuals who lack all criminal intent and knowledge,” without distinguishing between conduct and status. S. Rep. No. 97–476, p. 15 (1982). And one Senate sponsor of the bill pointed out that the absence of a scienter requirement in the prior statutes had resulted in “severe penalties for unintentional mis- steps.” 132 Cong. Rec. 9590 (1986) (statement of Sen. Hatch). Thus, assuming without deciding that statutory or legislative history could overcome the longstanding pre- sumption in favor of scienter, that history here is at best inconclusive. * * * The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. See Thacker v. TVA, 587 U. S. (2019) (slip op., at 10) ). We conclude that in a prosecution under 18 U.S. C. and the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. We express no view, however, about what precisely the Government must 12 REHAIF v. UNITED STATES Opinion of the Court prove to establish a defendant’s knowledge of status in respect to other provisions not at issue here. See post, at 13–15 (ALITO, J., dissenting) (discussing other statuses listed in not at issue here). We accordingly reverse the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. (2019) 13 Opinion Appendix of the of to opinion Court the Court APPENDIX 18 U.S. C. “Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 18 U.S. C. “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any con- trolled substance ; “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien—(A) is illegally or unlawfully in the United States; or (B) has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Na- tionality Act (8 U.S.C. 1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonorable conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that—(A) was issued after a hearing of which such person received actual no- tice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such per- son or child of such intimate partner or person, or engag- ing in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate 14 REHAIF v. UNITED STATES Appendix to opinion of the Court partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reason- ably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misde- meanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammuni- tion; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” Cite as: 588 U. S. (2019) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–9560 HAMID MOHAMED AHMED ALI REHAIF, PETITIONER v.

Justice Alito

dissenting

Rehaif v. United States

2019-06-21

https://www.courtlistener.com/opinion/4631841/rehaif-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4631841/

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. §922(g), an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And §922(g) is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of §922(g) or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of §922(g) had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of §922(g) dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of §922(g), does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. ____ (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. 888 F.3d 1138, 1140 (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- nated. 888 F.3d, at 1140–1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under §922(g) for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been terminated. Following what was then the universal and long- established interpretation of §922(g), the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. Id., at 1140. Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of §922(g) and a com- panion provision, 18 U.S. C. §924(a)(2), dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection . . . (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. §922(g) provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. §802)); “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. ____ (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when §924(a)(2) and §922(g) are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from §924(a)(2). He then transplants it into the beginning of §922(g), ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. §1101(a)(26))); “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the §922(g) offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from §924(a)(2), sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the §922(g) offense. Of course, there is no logical reason why this jump has to land at that particular point in §922(g). That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want §922(g) to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009). But when the term “knowingly” is excised from §924(a)(2) and inserted at the beginning of §922(g), what we get is something quite different: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition . . . . Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. ____ (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating §924(a)(1) and §922(g) that minimizes the changes in the language of the two provisions: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien—is illegally or unlawfully in the United States . . . and possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien who—is illegally or un- lawfully in the United States . . . to possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly . . . It is unlawful for any per- son . . . who, being an alien, who—is illegally or un- lawfully in the United States, . . . to possesses in or affecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of §922(g), but as noted, there is no reason why this term’s leap from §924(a)(2) must land at that point. So our new version of §922(g) could just as logically read like this: Whoever . . . It is unlawful for any person . . . who, being an alien who—is illegally or unlawfully in the United States . . . to knowingly possesses in or af- fecting commerce, any firearm or ammunition . . . [commits a crime punishable by . . . .] That would make it clear that the long-established inter- pretation of §922(g) is correct. What these possibilities show is that any attempt to combine the relevant language from §924(a)(2) with the language of §922(g) necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If §§922(g) and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in §§924(a)(2) and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of §§924(a)(2) and 922(g) can be read to require that a defendant know that his conduct is a violation of §922(g). In ordinary speech, to knowingly Cite as: 588 U. S. ____ (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of §§922(g) and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 (1976). But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United States v. Bishop, 412 U.S. 346, 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in §922(g), provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to §922(g), that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. ___, ___ (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of §922(g), which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into §922(g), would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United States v. Games-Perez, 667 F.3d 1136, 1143 (CA10 2012) (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. ____ (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read §922(g) if Congress had incorporated the knowledge requirement into §922(g) after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of §922(g) to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to §922(g)’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. §2251(b) punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. §1924(a) punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. §861(a) prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally . . . receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating §922(g)’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ___; United States v. Yermian, 468 U.S. 63 (1984); United States v. Feola, 420 U.S. 671 (1975). We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. §111, is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of appeals, Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law enforcement. 420 U.S., at 679. A similar consideration appears to provide the basis for the conclusion that a §922(g) defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. ____ (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of §922(g)’s status element is also not required. Whether a defendant falls into one of the §922(g) categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in §922(g)(4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” 27 CFR §478.11(a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted §922(g) to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger . . . to others” due to mental illness or incompetency, should he escape the reach of §922(g) because he does not know that a court has so found? Or consider the category defined by §922(g)(8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury . . . .” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under §922(g) by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by §922(g)(9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. ____ (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United States v. Hayes, 555 U.S. 415 (2009), the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. ___ (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with id., at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in 1996 to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside §922(g)(8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted §922(g)’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. Barrett v. United States, 423 U.S. 212, 218 (1976). It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the §922(g) status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old Chief v. United States, 519 U.S. 172 (1997), it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a §922(g) defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, id., at 186–190, but the Court held that a §922(g) defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. ____ (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that §922(g) requires proof of status but not of knowledge. See id., at 190 (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of §922(g) would lead to an anomaly that Congress is unlikely to have intended. Another provision of §922—i.e., §922(d)(5)(A)— prohibits firearms sellers from selling to persons who fall within a §922(g) category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the §922(g) cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the §922(g) categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of §922(g)’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to §924(a)(2), federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, 52 Stat. 1250; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, 82 Stat. 197; Gun Control Act of 1968, Pub. L. 90–618, 82 Stat. 1213, note following 18 U.S. C. §921. These predecessors of §922(g) did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United States v. Santiesteban, 825 F.2d 779, 782–783 (CA4 1987); United States v. Schmitt, 748 F.2d 249, 252 (CA5 1984); United States v. Oliver, 683 F.2d 224, 229 (CA7 1982); United States v. Lupino, 480 F.2d 720, 723–724 (CA8 1973); United States v. Pruner, 606 F.2d 871, 873–874 (CA9 1979).3 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., People v. Nieto, 247 Cal. App. 2d 364, 368, 55 Cal. Rptr. 546, 549 (1966). People v. Tenorio, 197 Colo. 137, 144–145, 590 P.2d 952, 957 (1979); State v. Harmon, 25 Ariz. App. 137, 139, 541 P.2d 600, 602 (1975); State v. Heald, 382 A.2d 290, 297 (Me. 1978); Williams v. State, 565 P.2d 46, 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted §924(a)(2)’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, 100 Stat. 449, note following 18 U.S. C. §921. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” Ryan v. Valencia Gonzales, 568 U.S. 57, 66 (2013) (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 (citing United States v. Renner, 496 F.2d 922, 924, 927 (1974)). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, §922(n), and punished only willful violations, see §924(a)(1)(D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. ____ (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in §924(a)(2) “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to §922(g)’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of appeals should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of appeals, 420 U.S., at 676; see also Luna Torres, 578 U. S., at ___, ___ (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of appeals to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left §922(g) off the list of offenses requiring knowledge in §924(a)(2), some may have invoked expressio unius to argue that a violation of §922(g) required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 (2012). 6 See United States v. Smith, 940 F.2d 710, 713 (CA1 1991); United States v. Huet, 665 F.3d 588, 596 (CA3 2012); United States v. Langley, 62 F.3d 602, 604–608 (CA4 1995) (en banc); United States v. Rose, 587 F.3d 695, 705–706, and n. 9 (CA5 2009) (per curiam); United States v. Dancy, 861 F.2d 77, 80–82 (CA5 1988) (per curiam); United States v. Lane, 267 F.3d 715, 720 (CA7 2001); United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United States v. Kind, 194 F.3d 900, 907 (CA8 1999); United States v. Miller, 105 F.3d 552, 555 (CA9 1997); United States v. Games-Perez, 667 F.3d 1136, 1142 (CA10 2012); United States v. Capps, 77 F.3d 350, 352–354 (CA10 1996); United States v. Jackson, 120 F.3d 1226, 1229 (CA11 1997) (per curiam); United States v. Bryant, 523 F.3d 349, 354 (CADC 2008). 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to §922(g) have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. ___ (2015); United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. . . . A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United States v. Gomez- Mendez, 486 F.3d 599, 603, n. 7 (CA9 2007) (citation omitted). Similarly, 18 U.S. C. §2243(a) makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. ____ (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. §2241(d). I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. 41 CFR §102–74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. §111 and §113. Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See Liparota v. United States, 471 U.S. 419, 425 (1985) (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement Video, 513 U.S., at 70–72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting Figueroa, 556 U.S., at 652; id., at 660 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, §922(g) is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the §922(g) offense. As we said in Staples v. United States, 511 U.S. 600, 609 (1994), “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in §922(g), there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United States v. Freed, 401 U.S. 601 (1971); United States v. Dotterweich, 320 U.S. 277 (1943); United States v. Balint, 258 U.S. 250 (1922); United States v. Behrman, 258 U.S. 280 (1922). In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to §922(g)’s status element, that Cite as: 588 U. S. ____ (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” Muscarello v. United States, 524 U.S. 125, 138 (1998) (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C. §922(g).8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. §2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating §922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. Bousley v. United States, 523 U.S. 614, 618–619 (1998). If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. §922(g), with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United States v. Jones, 172 F.3d 381, 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 (CA8 1998); United States v. Benboe, 157 F.3d 1181, 1184 (CA9 1998). This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. ___, ___–___ (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to §922(g). The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of §922(g) is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for convictions. Applications for relief by federal prisoners sentenced under will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- 888 F.3d, at –1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been termi Following what was then the universal and long- established interpretation of the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. at Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of and a com- panion provision, 18 U.S. C. dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when and are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from He then transplants it into the beginning of ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the offense. Of course, there is no logical reason why this jump has to land at that particular point in That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in But when the term “knowingly” is excised from and inserted at the beginning of what we get is something quite different: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States to possess in or affecting commerce, any firearm or ammunition Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating and that minimizes the changes in the language of the two provisions: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States and possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly It is unlawful for any per- son who, being an alien who—is illegally or un- lawfully in the United States to possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly It is unlawful for any per- son who, being an alien, who—is illegally or un- lawfully in the United States, to possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of but as noted, there is no reason why this term’s leap from must land at that point. So our new version of could just as logically read like this: Whoever It is unlawful for any person who, being an alien who—is illegally or unlawfully in the United States to knowingly possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] That would make it clear that the long-established inter- pretation of is correct. What these possibilities show is that any attempt to combine the relevant language from with the language of necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If § and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in § and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of § and 922(g) can be read to require that a defendant know that his conduct is a violation of In ordinary speech, to knowingly Cite as: 588 U. S. (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of § and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 But we have construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into would have placed it at the beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read if Congress had incorporated the knowledge requirement into after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to ’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating ’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ; United States v. Yermian, ; United We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law A similar consideration appears to provide the basis for the conclusion that a defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of ’s status element is also not required. Whether a defendant falls into one of the categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in (4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” (a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger to others” due to mental illness or incompetency, should he escape the reach of because he does not know that a court has so found? Or consider the category defined by (8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by (9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside (8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted ’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, at 186–190, but the Court held that a defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that requires proof of status but not of knowledge. See (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of would lead to an anomaly that Congress is unlikely to have intended. Another provision of prohibits firearms sellers from selling to persons who fall within a category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of ’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, ; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, ; Gun Control Act of 1968, Pub. L. 90–618, note following 18 U.S. C. These predecessors of did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United ; United ; United ; United 723–724 (CA8 1973); United 873–8743 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., 55 Cal. Rptr. 546, 549 (19). 144–145, ; ; State v. Heald, 382 A.2d 290, 297 (Me. 1978); 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted ’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, note following 18 U.S. C. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 ). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, and punished only willful violations, see (D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to ’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of ; see also Luna Torres, 578 U. S., at (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left off the list of offenses requiring knowledge in some may have invoked expressio unius to argue that a violation of required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 6 See United ; United 5 F.3d 588, ; United 62 F.3d ; United States v. Rose, 587 F.3d 695, 705–706, and n. 9 ; United States v. Dancy, ; United States v. Lane, ; United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United (CA8 1999); United ; United ; United States v. Capps, ; United 1 ; United 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. (2015); United ; Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United (citation omitted). Similarly, 18 U.S. C. makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. –74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. and Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement –72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting 556 U.S., at ; at 0 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the offense. As we said in Staples v. United States, “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United ; United States v. Dotterweich, ; United States v. Balint, ; United In any event, if the avoidance of a serious constitutional question required us to infer that some mens rea applies to ’s status element, that Cite as: 588 U. S. (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C.8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. 618–619 If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 ; United States v. Benboe, 157 F.3d 1181, 1184 This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. – (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent

Justice Kennedy

majority

Stoneridge Inv. Partners v. Scientific-Atl.

2008-01-15

https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/

https://www.courtlistener.com/api/rest/v3/clusters/145837/

2007-011

We consider the reach of the private right of action the Court has found implied in § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U.S.C. § 78j(b), and SEC Rule 10b-5, 17 CFR § 240.10b-5 (2007). In this suit investors alleged losses after purchasing common stock. They sought to impose liability on entities who, acting both as customers and suppliers, agreed to arrangements that allowed the investors' company to mislead its auditor and issue a misleading financial statement affecting the stock price. We conclude the implied right of action does not reach the customer/supplier companies because the investors did not rely upon their statements or representations. We affirm the judgment of the Court of Appeals. I This class-action suit by investors was filed against Charter Communications, Inc., in the United States District Court for the Eastern District of Missouri. Stoneridge Investment Partners, LLC, a limited liability company organized under the laws of Delaware, was the lead plaintiff and is petitioner here. Charter issued the financial statements and the securities in question. It was a named defendant along with some of its executives and Arthur Andersen LLP, Charter's independent auditor during the period in question. We are concerned, though, with two other defendants, respondents here. Respondents are Scientific-Atlanta, Inc., and Motorola, Inc. They were suppliers, and later customers, of Charter. For purposes of this proceeding, we take these facts, alleged by petitioner, to be true. Charter, a cable operator, engaged in a variety of fraudulent practices so its quarterly reports would meet Wall Street expectations for cable subscriber growth and operating cash flow. The fraud included misclassification of its customer base; delayed reporting of terminated customers; improper capitalization of costs that should have been shown as expenses; and manipulation of the company's billing cutoff dates to inflate reported revenues. In late 2000, Charter executives realized that, despite these efforts, the company would miss projected operating cash flow numbers by $15 to $20 million. To help meet the shortfall, Charter decided to alter its existing arrangements with respondents, Scientific-Atlanta and Motorola. Petitioner's theory as to whether Arthur Andersen was altogether misled or, on the other hand, knew the structure of the contract arrangements and was complicit to some degree, is not clear at this stage of the case. The point, however, is neither controlling nor significant for our present disposition, and in our decision we assume it was misled. Respondents supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers. Respondents agreed to the arrangement. *767 So that Arthur Andersen would not discover the link between Charter's increased payments for the boxes and the advertising purchases, the companies drafted documents to make it appear the transactions were unrelated and conducted in the ordinary course of business. Following a request from Charter, Scientific-Atlanta sent documents to Charter stating—falsely— that it had increased production costs. It raised the price for set top boxes for the rest of 2000 by $20 per box. As for Motorola, in a written contract Charter agreed to purchase from Motorola a specific number of set top boxes and pay liquidated damages of $20 for each unit it did not take. The contract was made with the expectation Charter would fail to purchase all the units and pay Motorola the liquidated damages. To return the additional money from the set top box sales, Scientific-Atlanta and Motorola signed contracts with Charter to purchase advertising time for a price higher than fair value. The new set top box agreements were backdated to make it appear that they were negotiated a month before the advertising agreements. The backdating was important to convey the impression that the negotiations were unconnected, a point Arthur Andersen considered necessary for separate treatment of the transactions. Charter recorded the advertising payments to inflate revenue and operating cash flow by approximately $17 million. The inflated number was shown on financial statements filed with the Securities and Exchange Commission (SEC) and reported to the public. Respondents had no role in preparing or disseminating Charter's financial statements. And their own financial statements booked the transactions as a wash, under generally accepted accounting principles. It is alleged respondents knew or were in reckless disregard of Charter's intention to use the transactions to inflate its revenues and knew the resulting financial statements issued by Charter would be relied upon by research analysts and investors. Petitioner filed a securities fraud class action on behalf of purchasers of Charter stock alleging that, by participating in the transactions, respondents violated § 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. The District Court granted respondents' motion to dismiss for failure to state a claim on which relief can be granted. The United States Court of Appeals for the Eighth Circuit affirmed. In re Charter Communications, Inc., Securities Litigation, 443 F.3d 987 (2006). In its view the allegations did not show that respondents made misstatements relied upon by the public or that they violated a duty to disclose; and on this premise it found no violation of § 10(b) by respondents. Id., at 992. At most, the court observed, respondents had aided and abetted Charter's misstatement of its financial results; but, it noted, there is no private right of action for aiding and abetting a § 10(b) violation. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 191, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). The court also affirmed the District Court's denial of petitioner's motion to amend the complaint, as the revised pleading would not change the court's conclusion on the merits. 443 F.3d, at 993. Decisions of the Courts of Appeals are in conflict respecting when, if ever, an injured investor may rely upon § 10(b) to recover from a party that neither makes a public misstatement nor violates a duty to disclose but does participate in a scheme to violate § 10(b). Compare Simpson v. AOL Time Warner Inc., 452 F.3d 1040 (C.A.9 2006), with Regents of Univ. of Cal. v. Credit Suisse First Boston (USA), Inc., *768 482 F.3d 372 (C.A.5 2007). We granted certiorari. 549 U.S. ___, 127 S. Ct. 1873, 167 L. Ed. 2d 363 (2007). II Section 10(b) of the Securities Exchange Act makes it "unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange . . . [t]o use or employ, in connection with the purchase or sale of any security . . . any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. § 78j. The SEC, pursuant to this section, promulgated Rule 10b-5, which makes it unlawful "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security." 17 CFR § 240.10b-5. Rule 10b-5 encompasses only conduct already prohibited by § 10(b). United States v. O'Hagan, 521 U.S. 642, 651, 117 S. Ct. 2199, 138 L. Ed. 2d 724 (1997). Though the text of the Securities Exchange Act does not provide for a private cause of action for § 10(b) violations, the Court has found a right of action implied in the words of the statute and its implementing regulation. Superintendent of Ins. of N.Y. v. Bankers Life & Casualty Co., 404 U.S. 6, 13, n. 9, 92 S. Ct. 165, 30 L. Ed. 2d 128 (1971). In a typical § 10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. See Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 341-342, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). In Central Bank, the Court determined that § 10(b) liability did not extend to aiders and abettors. The Court found the scope of § 10(b) to be delimited by the text, which makes no mention of aiding and abetting liability. 511 U.S., at 177, 114 S. Ct. 1439. The Court doubted the implied § 10(b) action should extend to aiders and abettors when none of the express causes of action in the securities Acts included that liability. Id., at 180, 114 S. Ct. 1439. It added the following: "Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor's statements or actions. See also Chiarella [v. United States, 445 U.S. 222, 228, 100 S. Ct. 1108, 63 L. Ed. 2d 348 (1980)]. Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b-5 recovery mandated by our earlier cases." Ibid. The decision in Central Bank led to calls for Congress to create an express cause of action for aiding and abetting within the Securities Exchange Act. Then-SEC Chairman Arthur Levitt, testifying before the Senate Securities Subcommittee, cited Central Bank and recommended that aiding *769 and abetting liability in private claims be established. S. Hearing No. 103-759, pp. 13-14 (1994). Congress did not follow this course. Instead, in § 104 of the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 757, it directed prosecution of aiders and abettors by the SEC. 15 U.S.C. § 78t(e). The § 10(b) implied private right of action does not extend to aiders and abettors. The conduct of a secondary actor must satisfy each of the elements or preconditions for liability; and we consider whether the allegations here are sufficient to do so. III The Court of Appeals concluded petitioner had not alleged that respondents engaged in a deceptive act within the reach of the § 10(b) private right of action, noting that only misstatements, omissions by one who has a duty to disclose, and manipulative trading practices (where "manipulative" is a term of art, see, e.g., Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 476-477, 97 S. Ct. 1292, 51 L. Ed. 2d 480 (1977)) are deceptive within the meaning of the rule. 443 F.3d, at 992. If this conclusion were read to suggest there must be a specific oral or written statement before there could be liability under § 10(b) or Rule 10b-5, it would be erroneous. Conduct itself can be deceptive, as respondents concede. In this case, moreover, respondents' course of conduct included both oral and written statements, such as the backdated contracts agreed to by Charter and respondents. A different interpretation of the holding from the Court of Appeals opinion is that the court was stating only that any deceptive statement or act respondents made was not actionable because it did not have the requisite proximate relation to the investors' harm. That conclusion is consistent with our own determination that respondents' acts or statements were not relied upon by the investors and that, as a result, liability cannot be imposed upon respondents. A Reliance by the plaintiff upon the defendant's deceptive acts is an essential element of the § 10(b) private cause of action. It ensures that, for liability to arise, the "requisite causal connection between a defendant's misrepresentation and a plaintiff's injury" exists as a predicate for liability. Basic Inc. v. Levinson, 485 U.S. 224, 243, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988); see also Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 154, 92 S. Ct. 1456, 31 L. Ed. 2d 741 (1972) (requiring "causation in fact"). We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. Id., at 153-154, 92 S. Ct. 1456. Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement. Basic, supra, at 247, 108 S. Ct. 978. Neither presumption applies here. Respondents had no duty to disclose; and their deceptive acts were not communicated to the public. No member of the investing public had knowledge, either actual or presumed, of respondents' deceptive acts during the relevant times. Petitioner, as a result, cannot show reliance upon any of respondents' actions except in an indirect chain that we find too remote for liability. *770 B Invoking what some courts call "scheme liability," see, e.g., In re Enron Corp. Securities, Derivative & "ERISA" Litigation, 439 F. Supp. 2d 692, 723 (S.D.Tex.2006), petitioner nonetheless seeks to impose liability on respondents even absent a public statement. In our view this approach does not answer the objection that petitioner did not in fact rely upon respondents' own deceptive conduct. Liability is appropriate, petitioner contends, because respondents engaged in conduct with the purpose and effect of creating a false appearance of material fact to further a scheme to misrepresent Charter's revenue. The argument is that the financial statement Charter released to the public was a natural and expected consequence of respondents' deceptive acts; had respondents not assisted Charter, Charter's auditor would not have been fooled, and the financial statement would have been a more accurate reflection of Charter's financial condition. That causal link is sufficient, petitioner argues, to apply Basic's presumption of reliance to respondents' acts. See, e.g., Simpson, 452 F.3d, at 1051-1052; In re Parmalat Securities Litigation, 376 F. Supp. 2d 472, 509 (S.D.N.Y.2005). In effect petitioner contends that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect. Were this concept of reliance to be adopted, the implied cause of action would reach the whole marketplace in which the issuing company does business; and there is no authority for this rule. As stated above, reliance is tied to causation, leading to the inquiry whether respondents' acts were immediate or remote to the injury. In considering petitioner's arguments, we note § 10(b) provides that the deceptive act must be "in connection with the purchase or sale of any security." 15 U.S.C. § 78j(b). Though this phrase in part defines the statute's coverage rather than causation (and so we do not evaluate the "in connection with" requirement of § 10(b) in this case), the emphasis on a purchase or sale of securities does provide some insight into the deceptive acts that concerned the enacting Congress. See Black, Securities Commentary: The Second Circuit's Approach to the "In Connection With" Requirement of Rule 10b-5, 53 Brooklyn L.Rev. 539, 541 (1987) ("[W]hile the `in connection with' and causation requirements are analytically distinct, they are related to each other, and discussion of the first requirement may merge with discussion of the second"). In all events we conclude respondents' deceptive acts, which were not disclosed to the investing public, are too remote to satisfy the requirement of reliance. It was Charter, not respondents, that misled its auditor and filed fraudulent financial statements; nothing respondents did made it necessary or inevitable for Charter to record the transactions as it did. The petitioner invokes the private cause of action under § 10(b) and seeks to apply it beyond the securities markets—the realm of financing business—to purchase and supply contracts—the realm of ordinary business operations. The latter realm is governed, for the most part, by state law. It is true that if business operations are used, as alleged here, to affect securities markets, the SEC enforcement power may reach the culpable actors. It is true as well that a dynamic, free economy presupposes a high degree of integrity in all of its parts, an integrity that must be underwritten by rules enforceable in fair, independent, accessible courts. Were the implied cause of action to be extended to the practices described here, however, *771 there would be a risk that the federal power would be used to invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees. Our precedents counsel against this extension. See Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S. Ct. 1220, 71 L. Ed. 2d 409 (1982) ("Congress, in enacting the securities laws, did not intend to provide a broad federal remedy for all fraud"); Santa Fe, 430 U.S., at 479-480, 97 S. Ct. 1292 ("There may well be a need for uniform federal fiduciary standards . . . . But those standards should not be supplied by judicial extension of § 10(b) and Rule 10b-5 to `cover the corporate universe'" (quoting Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 Yale L.J. 663, 700 (1974))). Though § 10(b) is "not `limited to preserving the integrity of the securities markets,'" Bankers Life, 404 U.S., at 12, 92 S. Ct. 165, it does not reach all commercial transactions that are fraudulent and affect the price of a security in some attenuated way. These considerations answer as well the argument that if this were a common-law action for fraud there could be a finding of reliance. Even if the assumption is correct, it is not controlling. Section 10(b) does not incorporate common-law fraud into federal law. See, e.g., SEC v. Zandford, 535 U.S. 813, 820, 122 S. Ct. 1899, 153 L. Ed. 2d 1 (2002) ("[Section 10(b)] must not be construed so broadly as to convert every common-law fraud that happens to involve securities into a violation"); Central Bank, 511 U.S., at 184, 114 S. Ct. 1439 ("Even assuming . . . a deeply rooted background of aiding and abetting tort liability, it does not follow that Congress intended to apply that kind of liability to the private causes of action in the securities Acts"); see also Dura, 544 U.S., at 341, 125 S. Ct. 1627. Just as § 10(b) "is surely badly strained when construed to provide a cause of action . . . to the world at large," Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 733, n. 5, 95 S. Ct. 1917, 44 L. Ed. 2d 539 (1975), it should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates. Petitioner's theory, moreover, would put an unsupportable interpretation on Congress' specific response to Central Bank in § 104 of the PSLRA. Congress amended the securities laws to provide for limited coverage of aiders and abettors. Aiding and abetting liability is authorized in actions brought by the SEC but not by private parties. See 15 U.S.C. § 78t(e). Petitioner's view of primary liability makes any aider and abettor liable under § 10(b) if he or she committed a deceptive act in the process of providing assistance. Reply Brief for Petitioner 6, n. 2; Tr. of Oral Arg. 24. Were we to adopt this construction of § 10(b), it would revive in substance the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud; and we would undermine Congress' determination that this class of defendants should be pursued by the SEC and not by private litigants. See Alexander v. Sandoval, 532 U.S. 275, 290, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) ("The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others"); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143, 120 S. Ct. 1291, 146 L. Ed. 2d 121 (2000) ("At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings"); see also Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596, 100 S. Ct. 800, 63 L. Ed. 2d 36 (1980) ("[W]hile the views of subsequent Congresses *772 cannot override the unmistakable intent of the enacting one, such views are entitled to significant weight, and particularly so when the precise intent of the enacting Congress is obscure" (citations omitted)). This is not a case in which Congress has enacted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and liability. Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. ___, ___, 127 S. Ct. 2705, 2720-21, 168 L. Ed. 2d 623 (2007). And in accord with the nature of the cause of action at issue here, we give weight to Congress' amendment to the Act restoring aiding and abetting liability in certain cases but not others. The amendment, in our view, supports the conclusion that there is no liability. The practical consequences of an expansion, which the Court has considered appropriate to examine in circumstances like these, see Virginia Bankshares, Inc. v. Sandberg, 501 U.S. 1083, 1104-1105, 111 S. Ct. 2749, 115 L. Ed. 2d 929 (1991); Blue Chip, 421 U.S., at 737, 95 S. Ct. 1917, provide a further reason to reject petitioner's approach. In Blue Chip, the Court noted that extensive discovery and the potential for uncertainty and disruption in a lawsuit allow plaintiffs with weak claims to extort settlements from innocent companies. Id., at 740-741, 95 S. Ct. 1917. Adoption of petitioner's approach would expose a new class of defendants to these risks. As noted in Central Bank, contracting parties might find it necessary to protect against these threats, raising the costs of doing business. See 511 U.S., at 189, 114 S. Ct. 1439. Overseas firms with no other exposure to our securities laws could be deterred from doing business here. See Brief for Organization for International Investment et al. as Amici Curiae 17-20. This, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets. Brief for NASDAQ Stock Market, Inc., et al. as Amici Curiae 12-14. C The history of the § 10(b) private right and the careful approach the Court has taken before proceeding without congressional direction provide further reasons to find no liability here. The § 10(b) private cause of action is a judicial construct that Congress did not enact in the text of the relevant statutes. See Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 358-359, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991); Blue Chip, supra, at 729, 95 S. Ct. 1917. Though the rule once may have been otherwise, see J.I. Case Co. v. Borak, 377 U.S. 426, 432-433, 84 S. Ct. 1555, 12 L. Ed. 2d 423 (1964), it is settled that there is an implied cause of action only if the underlying statute can be interpreted to disclose the intent to create one, see, e.g., Alexander, supra, at 286-287, 121 S. Ct. 1511; Virginia Bankshares, supra, at 1102, 111 S. Ct. 2749; Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S. Ct. 2479, 61 L. Ed. 2d 82 (1979). This is for good reason. In the absence of congressional intent the Judiciary's recognition of an implied private right of action "necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve. This runs contrary to the established principle that `[t]he jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation . . .,' American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17[, 71 S. Ct. 534, 95 L. Ed. 702] (1951), and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction." Cannon v. University of *773 Chicago, 441 U.S. 677, 746, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979) (Powell, J., dissenting) (citations and footnote omitted). The determination of who can seek a remedy has significant consequences for the reach of federal power. See Wilder v. Virginia Hospital Assn., 496 U.S. 498, 509, n. 9, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (requirement of congressional intent "reflects a concern, grounded in separation of powers, that Congress rather than the courts controls the availability of remedies for violations of statutes"). Concerns with the judicial creation of a private cause of action caution against its expansion. The decision to extend the cause of action is for Congress, not for us. Though it remains the law, the § 10(b) private right should not be extended beyond its present boundaries. See Virginia Bankshares, supra, at 1102, 111 S. Ct. 2749 ("[T]he breadth of the [private right of action] once recognized should not, as a general matter, grow beyond the scope congressionally intended"); see also Central Bank, supra, at 173, 114 S. Ct. 1439 (determining that the scope of conduct prohibited is limited by the text of § 10(b)). This restraint is appropriate in light of the PSLRA, which imposed heightened pleading requirements and a loss causation requirement upon "any private action" arising from the Securities Exchange Act. See 15 U.S.C. § 78u-4(b). It is clear these requirements touch upon the implied right of action, which is now a prominent feature of federal securities regulation. See Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U.S. 71, 81-82, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006); Dura, 544 U.S., at 345-346, 125 S. Ct. 1627; see also S.Rep. No. 104-98, p. 4-5 (1995), U.S.Code Cong. & Admin.News 1995, pp. 679, 684 (recognizing the § 10(b) implied cause of action, and indicating the PSLRA was intended to have "Congress . . . reassert its authority in this area"); id., at 26 (indicating the pleading standards covered § 10(b) actions). Congress thus ratified the implied right of action after the Court moved away from a broad willingness to imply private rights of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-382, and n. 66, 102 S. Ct. 1825, 72 L. Ed. 2d 182 (1982); cf. Borak, supra, at 433, 84 S. Ct. 1555. It is appropriate for us to assume that when § 78u-4 was enacted, Congress accepted the § 10(b) private cause of action as then defined but chose to extend it no further. IV Secondary actors are subject to criminal penalties, see, e.g., 15 U.S.C. § 78ff, and civil enforcement by the SEC, see, e.g., § 78t(e). The enforcement power is not toothless. Since September 30, 2002, SEC enforcement actions have collected over $10 billion in disgorgement and penalties, much of it for distribution to injured investors. See SEC, 2007 Performance and Accountability Report, p. 26, http://www.sec.gov/about/secpar2007.shtml (as visited Jan. 2, 2008, and available in Clerk of Court's case file). And in this case both parties agree that criminal penalties are a strong deterrent. See Brief for Respondents 48; Reply Brief for Petitioner 17. In addition some state securities laws permit state authorities to seek fines and restitution from aiders and abettors. See, e.g., Del.Code Ann., Tit. 6, § 7325 (2005). All secondary actors, furthermore, are not necessarily immune from private suit. The securities statutes provide an express private right of action against accountants and underwriters in certain circumstances, see 15 U.S.C. § 77k, and the implied right of action in § 10(b) continues to cover secondary actors who *774 commit primary violations. Central Bank, supra, at 191, 114 S. Ct. 1439. Here respondents were acting in concert with Charter in the ordinary course as suppliers and, as matters then evolved in the not so ordinary course, as customers. Unconventional as the arrangement was, it took place in the marketplace for goods and services, not in the investment sphere. Charter was free to do as it chose in preparing its books, conferring with its auditor, and preparing and then issuing its financial statements. In these circumstances the investors cannot be said to have relied upon any of respondents' deceptive acts in the decision to purchase or sell securities; and as the requisite reliance cannot be shown, respondents have no liability to petitioner under the implied right of action. This conclusion is consistent with the narrow dimensions we must give to a right of action Congress did not authorize when it first enacted the statute and did not expand when it revisited the law. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

We consider the reach of the private right of action the Court has found implied in 10(b) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78j(b), and SEC Rule 10b-5, CFR 240.10b-5 In this suit investors alleged losses after purchasing common stock. They sought to impose liability on entities who, acting both as customers and suppliers, agreed to arrangements that allowed the investors' company to mislead its auditor and issue a misleading financial statement affecting the stock price. We conclude the implied right of action does not reach the customer/supplier companies because the investors did not rely upon their statements or representations. We affirm the judgment of the Court of Appeals. I This class-action suit by investors was filed against Charter Communications, Inc., in the United States District Court for the Eastern District of Missouri. Stoneridge Investment Partners, LLC, a limited liability company organized under the laws of Delaware, was the lead plaintiff and is petitioner here. Charter issued the financial statements and the securities in question. It was a named defendant along with some of its executives and Arthur Andersen LLP, Charter's independent auditor during the period in question. We are concerned, though, with two other defendants, respondents here. Respondents are Scientific-Atlanta, Inc., and Motorola, Inc. They were suppliers, and later customers, of Charter. For purposes of this proceeding, we take these facts, alleged by petitioner, to be true. Charter, a cable operator, engaged in a variety of fraudulent practices so its quarterly reports would meet Wall Street expectations for cable subscriber growth and operating cash flow. The fraud included misclassification of its customer base; delayed reporting of terminated customers; improper capitalization of costs that should have been shown as expenses; and manipulation of the company's billing cutoff dates to inflate reported revenues. In late Charter executives realized that, despite these efforts, the company would miss projected operating cash flow numbers by $15 to $20 million. To help meet the shortfall, Charter decided to alter its existing arrangements with respondents, Scientific-Atlanta and Motorola. Petitioner's theory as to whether Arthur Andersen was altogether misled or, on the other hand, knew the structure of the contract arrangements and was complicit to some degree, is not clear at this stage of the case. The point, however, is neither controlling nor significant for our present disposition, and in our decision we assume it was misled. Respondents supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers. Respondents agreed to the arrangement. *767 So that Arthur Andersen would not discover the link between Charter's increased payments for the boxes and the advertising purchases, the companies drafted documents to make it appear the transactions were unrelated and conducted in the ordinary course of business. Following a request from Charter, Scientific-Atlanta sent documents to Charter stating—falsely— that it had increased production costs. It raised the price for set top boxes for the rest of by $20 per box. As for Motorola, in a written contract Charter agreed to purchase from Motorola a specific number of set top boxes and pay liquidated damages of $20 for each unit it did not take. The contract was made with the expectation Charter would fail to purchase all the units and pay Motorola the liquidated damages. To return the additional money from the set top box sales, Scientific-Atlanta and Motorola signed contracts with Charter to purchase advertising time for a price higher than fair value. The new set top box agreements were backdated to make it appear that they were negotiated a month before the advertising agreements. The backdating was important to convey the impression that the negotiations were unconnected, a point Arthur Andersen considered necessary for separate treatment of the transactions. Charter recorded the advertising payments to inflate revenue and operating cash flow by approximately $ million. The inflated number was shown on financial statements filed with the Securities and Exchange Commission (SEC) and reported to the public. Respondents had no role in preparing or disseminating Charter's financial statements. And their own financial statements booked the transactions as a wash, under generally accepted accounting principles. It is alleged respondents knew or were in reckless disregard of Charter's intention to use the transactions to inflate its revenues and knew the resulting financial statements issued by Charter would be relied upon by research analysts and investors. Petitioner filed a securities fraud class action on behalf of purchasers of Charter stock alleging that, by participating in the transactions, respondents violated 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. The District Court granted respondents' motion to dismiss for failure to state a claim on which relief can be granted. The United States Court of Appeals for the Eighth Circuit affirmed. In re Charter Communications, Inc., Securities Litigation, In its view the allegations did not show that respondents made misstatements relied upon by the public or that they violated a duty to disclose; and on this premise it found no violation of 10(b) by respondents. At most, the court observed, respondents had aided and abetted Charter's misstatement of its financial results; but, it noted, there is no private right of action for aiding and abetting a 10(b) violation. See Central of Denver, The court also affirmed the District Court's denial of petitioner's motion to amend the complaint, as the revised pleading would not change the court's conclusion on the Decisions of the Courts of Appeals are in conflict respecting when, if ever, an injured investor may rely upon 10(b) to recover from a party that neither makes a public misstatement nor violates a duty to disclose but does participate in a scheme to violate 10(b). Compare with Regents of Univ. of We granted certiorari. 549 U.S. II Section 10(b) of the Securities Exchange Act makes it "unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange [to use or employ, in connection with the purchase or sale of any security any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. 78j. The SEC, pursuant to this section, promulgated Rule 10b-5, which makes it unlawful "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security." CFR 240.10b-5. Rule 10b-5 encompasses only conduct already prohibited by 10(b). United Though the text of the Securities Exchange Act does not provide for a private cause of action for 10(b) violations, the Court has found a right of action implied in the words of the statute and its implementing regulation. Superintendent of Ins. of In a typical 10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. See Pharmaceuticals, In Central the Court determined that 10(b) liability did not extend to aiders and abettors. The Court found the scope of 10(b) to be delimited by the text, which makes no mention of aiding and abetting The Court doubted the implied 10(b) action should extend to aiders and abettors when none of the express causes of action in the securities Acts included that It added the following: "Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor's statements or actions. See also Chiarella [v. United States, Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b-5 recovery mandated by our earlier cases." The decision in Central led to calls for Congress to create an express cause of action for aiding and abetting within the Securities Exchange Act. Then-SEC Chairman Arthur Levitt, testifying before the Senate Securities Subcommittee, cited Central and recommended that aiding *769 and abetting liability in private claims be established. S. Hearing No. 103-759, pp. 13-14 Congress did not follow this course. Instead, in 104 of the Private Securities Litigation Reform Act of 1995 (PSLRA), it directed prosecution of aiders and abettors by the SEC. 15 U.S.C. 78t(e). The 10(b) implied private right of action does not extend to aiders and abettors. The conduct of a secondary actor must satisfy each of the elements or preconditions for liability; and we consider whether the allegations here are sufficient to do so. III The Court of Appeals concluded petitioner had not alleged that respondents engaged in a deceptive act within the reach of the 10(b) private right of action, noting that only misstatements, omissions by one who has a duty to disclose, and manipulative trading practices ) are deceptive within the meaning of the 443 F.3d, If this conclusion were read to suggest there must be a specific oral or written statement before there could be liability under 10(b) or Rule 10b-5, it would be erroneous. Conduct itself can be deceptive, as respondents concede. In this case, moreover, respondents' course of conduct included both oral and written statements, such as the backdated contracts agreed to by Charter and respondents. A different interpretation of the holding from the Court of Appeals opinion is that the court was stating only that any deceptive statement or act respondents made was not actionable because it did not have the requisite proximate relation to the investors' harm. That conclusion is consistent with our own determination that respondents' acts or statements were not relied upon by the investors and that, as a result, liability cannot be imposed upon respondents. A Reliance by the plaintiff upon the defendant's deceptive acts is an essential element of the 10(b) private cause of action. It ensures that, for liability to arise, the "requisite causal connection between a defendant's misrepresentation and a plaintiff's injury" exists as a predicate for Basic ; see also Affiliated Ute Citizens of We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. at 153-, Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement. Basic, Neither presumption applies here. Respondents had no duty to disclose; and their deceptive acts were not communicated to the public. No member of the investing public had knowledge, either actual or presumed, of respondents' deceptive acts during the relevant times. Petitioner, as a result, cannot show reliance upon any of respondents' actions except in an indirect chain that we find too remote for *770 B Invoking what some courts call "scheme liability," see, e.g., In re Enron Corp. Securities, Derivative & "ERISA" Litigation, petitioner nonetheless seeks to impose liability on respondents even absent a public statement. In our view this approach does not answer the objection that petitioner did not in fact rely upon respondents' own deceptive conduct. Liability is appropriate, petitioner contends, because respondents engaged in conduct with the purpose and effect of creating a false appearance of material fact to further a scheme to misrepresent Charter's revenue. The argument is that the financial statement Charter released to the public was a natural and expected consequence of respondents' deceptive acts; had respondents not assisted Charter, Charter's auditor would not have been fooled, and the financial statement would have been a more accurate reflection of Charter's financial condition. That causal link is sufficient, petitioner argues, to apply Basic's presumption of reliance to respondents' acts. See, e.g., -1052; In re Parmalat Securities Litigation, In effect petitioner contends that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect. Were this concept of reliance to be adopted, the implied cause of action would reach the whole marketplace in which the issuing company does business; and there is no authority for this As stated above, reliance is tied to causation, leading to the inquiry whether respondents' acts were immediate or remote to the injury. In considering petitioner's arguments, we note 10(b) provides that the deceptive act must be "in connection with the purchase or sale of any security." 15 U.S.C. 78j(b). Though this phrase in part defines the statute's coverage rather than causation (and so we do not evaluate the "in connection with" requirement of 10(b) in this case), the emphasis on a purchase or sale of securities does provide some insight into the deceptive acts that concerned the enacting Congress. See Black, Securities Commentary: The Second Circuit's Approach to the "In Connection With" Requirement of Rule 10b-5, 53 Brooklyn L.Rev. 539, 541 (1987) ("[While the `in connection with' and causation requirements are analytically distinct, they are related to each other, and discussion of the first requirement may merge with discussion of the second"). In all events we conclude respondents' deceptive acts, which were not disclosed to the investing public, are too remote to satisfy the requirement of reliance. It was Charter, not respondents, that misled its auditor and filed fraudulent financial statements; nothing respondents did made it necessary or inevitable for Charter to record the transactions as it did. The petitioner invokes the private cause of action under 10(b) and seeks to apply it beyond the securities markets—the realm of financing business—to purchase and supply contracts—the realm of ordinary business operations. The latter realm is governed, for the most part, by state law. It is true that if business operations are used, as alleged here, to affect securities markets, the SEC enforcement power may reach the culpable actors. It is true as well that a dynamic, free economy presupposes a high degree of integrity in all of its parts, an integrity that must be underwritten by rules enforceable in fair, independent, accessible courts. Were the implied cause of action to be extended to the practices described here, however, *771 there would be a risk that the federal power would be used to invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees. Our precedents counsel against this extension. See Marine ; Santa -480, ("There may well be a need for uniform federal fiduciary standards But those standards should not be supplied by judicial extension of 10(b) and Rule 10b-5 to `cover the corporate universe'" )). Though 10(b) is "not `limited to preserving the integrity of the securities markets,'" ers it does not reach all commercial transactions that are fraudulent and affect the price of a security in some attenuated way. These considerations answer as well the argument that if this were a common-law action for fraud there could be a finding of reliance. Even if the assumption is correct, it is not controlling. Section 10(b) does not incorporate common-law fraud into federal law. See, e.g., ; Central ("Even assuming a deeply rooted background of aiding and abetting tort liability, it does not follow that Congress intended to apply that kind of liability to the private causes of action in the securities Acts"); see also Just as 10(b) "is surely badly strained when construed to provide a cause of action to the world at large," Blue 421 U.S. 95 S. Ct. 7, it should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates. Petitioner's theory, moreover, would put an unsupportable interpretation on Congress' specific response to Central in 104 of the PSLRA. Congress amended the securities laws to provide for limited coverage of aiders and abettors. Aiding and abetting liability is authorized in actions brought by the SEC but not by private parties. See 15 U.S.C. 78t(e). Petitioner's view of primary liability makes any aider and abettor liable under 10(b) if he or she committed a deceptive act in the process of providing assistance. Reply Brief for Petitioner 6, n. 2; Tr. of Oral Arg. 24. Were we to adopt this construction of 10(b), it would revive in substance the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud; and we would undermine Congress' determination that this class of defendants should be pursued by the SEC and not by private litigants. See ; ; see also Seatrain Shipbuilding This is not a case in which Congress has enacted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and Cf. Leegin Creative Leather Products, And in accord with the nature of the cause of action at issue here, we give weight to Congress' amendment to the Act restoring aiding and abetting liability in certain cases but not others. The amendment, in our view, supports the conclusion that there is no The practical consequences of an expansion, which the Court has considered appropriate to examine in circumstances like these, see Virginia shares, ; Blue 95 S. Ct. 7, provide a further reason to reject petitioner's approach. In Blue the Court noted that extensive discovery and the potential for uncertainty and disruption in a lawsuit allow plaintiffs with weak claims to extort settlements from innocent companies. 95 S. Ct. 7. Adoption of petitioner's approach would expose a new class of defendants to these risks. As noted in Central contracting parties might find it necessary to protect against these threats, raising the costs of doing business. See Overseas firms with no other exposure to our securities laws could be deterred from doing business here. See Brief for Organization for International Investment et al. as Amici Curiae -20. This, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets. Brief for NASDAQ Stock Market, Inc., et al. as Amici Curiae 12-14. C The history of the 10(b) private right and the careful approach the Court has taken before proceeding without congressional direction provide further reasons to find no liability here. The 10(b) private cause of action is a judicial construct that Congress did not enact in the text of the relevant statutes. See Lampf, Pleva, Lipkind, Prupis & ; Blue 95 S. Ct. 7 it is settled that there is an implied cause of action only if the underlying statute can be interpreted to disclose the intent to create one, see, e.g., ; Virginia shares, This is for good reason. In the absence of congressional intent the Judiciary's recognition of an implied private right of action "necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve. This runs contrary to the established principle that `[the jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation,' American Fire & Casualty and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction." (citations and footnote omitted). The determination of who can seek a remedy has significant consequences for the reach of federal power. See n. 9, Concerns with the judicial creation of a private cause of action caution against its expansion. The decision to extend the cause of action is for Congress, not for us. Though it remains the law, the 10(b) private right should not be extended beyond its present boundaries. See Virginia shares, ("[The breadth of the [private right of action once recognized should not, as a general matter, grow beyond the scope congressionally intended"); see also Central at 3, (determining that the scope of conduct prohibited is limited by the text of 10(b)). This restraint is appropriate in light of the PSLRA, which imposed heightened pleading requirements and a loss causation requirement upon "any private action" arising from the Securities Exchange Act. See 15 U.S.C. 78u-4(b). It is clear these requirements touch upon the implied right of action, which is now a prominent feature of federal securities regulation. See Merrill Lynch, Pierce, nner & Smith 164 L. Ed. 2d 9 ; -346, U.S.Code Cong. & Admin.News 1995, pp. 679, 684 (recognizing the 10(b) implied cause of action, and indicating the PSLRA was intended to have "Congress reassert its authority in this area"); (indicating the pleading standards covered 10(b) actions). Congress thus ratified the implied right of action after the Court moved away from a broad willingness to imply private rights of action. See Merrill Lynch, Pierce, nner & Smith, ; cf. It is appropriate for us to assume that when 78u-4 was enacted, Congress accepted the 10(b) private cause of action as then defined but chose to extend it no further. IV Secondary actors are subject to criminal penalties, see, e.g., 15 U.S.C. 78ff, and civil enforcement by the SEC, see, e.g., 78t(e). The enforcement power is not toothless. Since September 30, SEC enforcement actions have collected over $10 billion in disgorgement and penalties, much of it for distribution to injured investors. See SEC, Performance and Accountability Report, p. 26, http://www.sec.gov/about/secpar.shtml (as visited Jan. 2, 2008, and available in Clerk of Court's case file). And in this case both parties agree that criminal penalties are a strong deterrent. See Brief for Respondents 48; Reply Brief for Petitioner In addition some state securities laws permit state authorities to seek fines and restitution from aiders and abettors. See, e.g., Del.Code Ann., Tit. 6, 7325 All secondary actors, furthermore, are not necessarily immune from private suit. The securities statutes provide an express private right of action against accountants and underwriters in certain circumstances, see 15 U.S.C. 77k, and the implied right of action in 10(b) continues to cover secondary actors who *774 commit primary violations. Central at Here respondents were acting in concert with Charter in the ordinary course as suppliers and, as matters then evolved in the not so ordinary course, as customers. Unconventional as the arrangement was, it took place in the marketplace for goods and services, not in the investment sphere. Charter was free to do as it chose in preparing its books, conferring with its auditor, and preparing and then issuing its financial statements. In these circumstances the investors cannot be said to have relied upon any of respondents' deceptive acts in the decision to purchase or sell securities; and as the requisite reliance cannot be shown, respondents have no liability to petitioner under the implied right of action. This conclusion is consistent with the narrow dimensions we must give to a right of action Congress did not authorize when it first enacted the statute and did not expand when it revisited the law. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Stevens

dissenting

Stoneridge Inv. Partners v. Scientific-Atl.

2008-01-15

https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/

https://www.courtlistener.com/api/rest/v3/clusters/145837/

2007-011

Charter Communications, Inc., inflated its revenues by $17 million in order to cover up a $15 to $20 million expected cash flow shortfall. It could not have done so absent the knowingly fraudulent actions of Scientific-Atlanta, Inc., and Motorola, Inc. Investors relied on Charter's revenue statements in deciding whether to invest in Charter and in doing so relied on respondents' fraud, which was itself a "deceptive device" prohibited by § 10(b) of the Securities Exchange Act of 1934. 15 U.S.C. § 78j(b). This is enough to satisfy the requirements of § 10(b) and enough to distinguish this case from Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., 511 U.S. 164, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994). The Court seems to assume that respondents' alleged conduct could subject them to liability in an enforcement proceeding initiated by the Government, ante, at 773, but nevertheless concludes that they are not subject to liability in a private action brought by injured investors because they are, at most, guilty of aiding and abetting a violation of § 10(b), rather than an actual violation of the statute. While that conclusion results in an affirmance of the judgment of the Court of Appeals, it rests on a rejection of that court's reasoning. Furthermore, while the Court frequently refers to petitioner's attempt to "expand" the implied cause of action,[1]—a conclusion that begs the question of the contours of that cause of action—it is today's decision that results in a significant departure from Central Bank. The Court's conclusion that no violation of § 10(b) giving rise to a private right of action has been alleged in this case rests on two faulty premises: (1) the Court's overly broad reading of Central Bank, and (2) the view that reliance requires a kind of super-causation—a view contrary to both the Securities and Exchange Commission's (SEC) position in a recent Ninth *775 Circuit case[2] and our holding in Basic Inc. v. Levinson, 485 U.S. 224, 108 S. Ct. 978, 99 L. Ed. 2d 194 (1988). These two points merit separate discussion. I The Court of Appeals incorrectly based its decision on the view that "[a] device or contrivance is not `deceptive,' within the meaning of § 10(b), absent some misstatement or a failure to disclose by one who has a duty to disclose." In re Charter Communications, Inc., Securities Litigation, 443 F.3d 987, 992 (C.A.8 2006). The Court correctly explains why the statute covers nonverbal as well as verbal deceptive conduct. Ante, at 769. The allegations in this case—that respondents produced documents falsely claiming costs had risen and signed contracts they knew to be backdated in order to disguise the connection between the increase in costs and the purchase of advertising—plainly describe "deceptive devices" under any standard reading of the phrase. What the Court fails to recognize is that this case is critically different from Central Bank because the bank in that case did not engage in any deceptive act and, therefore, did not itself violate § 10(b). The Court sweeps aside any distinction, remarking that holding respondents liable would "reviv[e] the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud." Ante, at 771. But the fact that Central Bank engaged in no deceptive conduct whatsoever—in other words, that it was at most an aider and abettor—sharply distinguishes Central Bank from cases that do involve allegations of such conduct. 511 U.S., at 167, 114 S. Ct. 1439 (stating that the question presented was "whether private civil liability under § 10(b) extends as well to those who do not engage in the manipulative or deceptive practice, but who aid and abet the violation"). The Central Bank of Denver was the indenture trustee for bonds issued by a public authority and secured by liens on property in Colorado Springs. After default, purchasers of $2.1 million of those bonds sued the underwriters, alleging violations of § 10(b); they also named Central Bank as a defendant, contending that the bank's delay in reviewing a suspicious appraisal of the value of the security made it liable as an aider and abettor. Id., at 167-168, 114 S. Ct. 1439. The facts of this case would parallel those of Central Bank if respondents had, for example, merely delayed sending invoices for set-top boxes to Charter. Conversely, the facts in Central Bank would mirror those in the case before us today if the bank had knowingly purchased real estate in wash transactions at above-market prices in order to facilitate the appraiser's overvaluation of the security. Central Bank, thus, poses no obstacle to petitioner's argument that it has alleged a cause of action under § 10(b). II The Court's next faulty premise is that petitioner is required to allege that Scientific-Atlanta and Motorola made it "necessary or inevitable for Charter to record the transactions in the way it did," ante, at 770, in order to demonstrate reliance. Because the Court of Appeals did not base its *776 holding on reliance grounds, see 443 F.3d, at 992, the fairest course to petitioner would be for the majority to remand to the Court of Appeals to determine whether petitioner properly alleged reliance, under a correct view of what § 10(b) covers.[3] Because the Court chooses to rest its holding on an absence of reliance, a response is required. In Basic Inc., 485 U.S., at 243, 108 S. Ct. 978, we stated that "[r]eliance provides the requisite causal connection between a defendant's misrepresentation and a plaintiff's injury." The Court's view of the causation required to demonstrate reliance is unwarranted and without precedent. In Basic Inc., we held that the "fraud-on-the-market" theory provides adequate support for a presumption in private securities actions that shareholders (or former shareholders) in publicly traded companies rely on public material misstatements that affect the price of the company's stock. Id., at 248, 108 S. Ct. 978. The holding in Basic is surely a sufficient response to the argument that a complaint alleging that deceptive acts which had a material effect on the price of a listed stock should be dismissed because the plaintiffs were not subjectively aware of the deception at the time of the securities' purchase or sale. This Court has not held that investors must be aware of the specific deceptive act which violates § 10b to demonstrate reliance. The Court is right that a fraud-on-the-market presumption coupled with its view on causation would not support petitioner's view of reliance. The fraud-on-the-market presumption helps investors who cannot demonstrate that they, themselves, relied on fraud that reached the market. But that presumption says nothing about causation from the other side: what an individual or corporation must do in order to have "caused" the misleading information that reached the market. The Court thus has it backwards when it first addresses the fraud-on-the-market presumption, rather than the causation required. See, ante, at 770. The argument is not that the fraud-on-the-market presumption is enough standing alone, but that a correct view of causation coupled with the presumption would allow petitioner to plead reliance. Lower courts have correctly stated that the causation necessary to demonstrate reliance is not a difficult hurdle to clear in a private right of action under § 10(b). Reliance is often equated with "`transaction causation.'" Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 341, 342, 125 S. Ct. 1627, 161 L. Ed. 2d 577 (2005). Transaction causation, in turn, is often defined as requiring an allegation that but for the deceptive act, the plaintiff would not have entered into the securities transaction. See, e.g., Lentell v. Merrill Lynch & Co., 396 F.3d 161, 172 (C.A.2 2005); Binder v. Gillespie, 184 F.3d 1059, 1065-1066 (C.A.9 1999). Even if but-for causation, standing alone, is too weak to establish reliance, petitioner has also alleged that respondents proximately caused Charter's *777 misstatement of income; petitioner has alleged that respondents knew their deceptive acts would be the basis for statements that would influence the market price of Charter stock on which shareholders would rely. Second Amended Consolidated Class Action Complaint ¶¶ 8, 98, 100, 109, App. 19a, 55a-56a, 59a. Thus, respondents' acts had the foreseeable effect of causing petitioner to engage in the relevant securities transactions. The Restatement (Second) of Torts § 533, pp. 72-73 (1977), provides that "[t]he maker of a fraudulent misrepresentation is subject to liability . . . if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other." The sham transactions described in the complaint in this case had the same effect on Charter's profit and loss statement as a false entry directly on its books that included $17 million of gross revenues that had not been received. And respondents are alleged to have known that the outcome of their fraudulent transactions would be communicated to investors. The Court's view of reliance is unduly stringent and unmoored from authority. The Court first says that if the petitioner's concept of reliance is adopted the implied cause of action "would reach the whole marketplace in which the issuing company does business." Ante, at 770. The answer to that objection is, of course, that liability only attaches when the company doing business with the issuing company has itself violated § 10(b).[4] The Court next relies on what it views as a strict division between the "realm of financing business" and the "ordinary business operations." Ante, at 770. But petitioner's position does not merge the two: A corporation engaging in a business transaction with a partner who transmits false information to the market is only liable where the corporation itself violates § 10(b). Such a rule does not invade the province of "ordinary" business transactions. The majority states that "[s]ection 10(b) does not incorporate common-law fraud into federal law," citing SEC v. Zandford, 535 U.S. 813, 122 S. Ct. 1899, 153 L. Ed. 2d 1 (2002). Ante, at 771. Of course, not every common-law fraud action that happens to touch upon securities is an action under § 10(b), but the Court's opinion in Zandford did not purport to jettison all reference to common-law fraud doctrines from § 10(b) cases. In fact, our prior cases explained that to the extent that "the antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud," it is because common-law fraud doctrines might be too restrictive. Herman & MacLean v. Huddleston, 459 U.S. 375, 388-389, 103 S. Ct. 683, 74 L. Ed. 2d 548 (1983). "Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry." Id., at 389, 103 S. Ct. 683. I, thus, see no reason to abandon common-law approaches to causation in § 10(b) cases. Finally, the Court relies on the course of action Congress adopted after our decision in Central Bank to argue that siding with *778 petitioner on reliance would run contrary to congressional intent. Senate hearings on Central Bank were held within one month of our decision.[5] Less than one year later, Senators Dodd and Domenici introduced S. 240, which became the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737.[6] Congress stopped short of undoing Central Bank entirely, instead adopting a compromise which restored the authority of the SEC to enforce aiding and abetting liability.[7] A private right of action based on aiding and abetting violations of § 10(b) was not, however, included in the PSLRA,[8] despite support from Senator Dodd and members of the Senate Subcommittee on Securities.[9] This compromise surely provides no support for extending Central Bank in order to immunize an undefined class of actual violators of § 10(b) from liability in private litigation. Indeed, as Members of Congress—including those who rejected restoring a private cause of action against aiders and abettors—made clear, private litigation under § 10(b) continues to play a vital role in protecting the integrity of our securities markets.[10] That Congress chose *779 not to restore the aiding and abetting liability removed by Central Bank does not mean that Congress wanted to exempt from liability the broader range of conduct that today's opinion excludes. The Court is concerned that such liability would deter overseas firms from doing business in the United States or "shift securities offerings away from domestic capital markets." Ante, at 772. But liability for those who violate § 10(b) "will not harm American competitiveness; in fact, investor faith in the safety and integrity of our markets is their strength. The fact that our markets are the safest in the world has helped make them the strongest in the world." Brief for Former SEC Commissioners as Amici Curiae 9. Accordingly, while I recognize that the Central Bank opinion provides a precedent for judicial policymaking decisions in this area of the law, I respectfully dissent from the Court's continuing campaign to render the private cause of action under § 10(b) toothless. I would reverse the decision of the Court of Appeals. III While I would reverse for the reasons stated above, I must also comment on the importance of the private cause of action that Congress implicitly authorized when it enacted the Securities Exchange Act of 1934. A theme that underlies the Court's analysis is its mistaken hostility towards the § 10(b) private cause of action.[11]Ante, at 772. The Court's current view of implied causes of action is that they are merely a "relic" of our prior "heady days." Correctional Services Corp. v. Malesko, 534 U.S. 61, 75, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001) (SCALIA, J., concurring). Those "heady days" persisted for two hundred years. During the first two centuries of this Nation's history much of our law was developed by judges in the common-law tradition. A basic principle animating our jurisprudence was enshrined in state constitution provisions guaranteeing, in substance, that "every wrong shall have a remedy."[12] Fashioning appropriate remedies *780 for the violation of rules of law designed to protect a class of citizens was the routine business of judges. See Marbury v. Madison, 1 Cranch 137, 166, 2 L. Ed. 60 (1803). While it is true that in the early days state law was the source of most of those rules, throughout our history—until 1975—the same practice prevailed in federal courts with regard to federal statutes that left questions of remedy open for judges to answer. In Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39, 36 S. Ct. 482, 60 L. Ed. 874 (1916), this Court stated the following: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Com. Dig., tit. Action upon Statute (F), in these words: `So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.' (Per Holt, C. J., Anon., 6 Mod. 26, 27.)" Judge Friendly succinctly described the post-Rigsby, pre-1975 practice in his opinion in Leist v. Simplot, 638 F.2d 283, 298-299 (C.A.2 1980): "Following Rigsby the Supreme Court recognized implied causes of action on numerous occasions, see, e.g., Wyandotte Transportation Co. v. United States, 389 U.S. 191[, 88 S. Ct. 379, 19 L. Ed. 2d 407 . . .] (1967) (sustaining implied cause of action by United States for damages under Rivers and Harbors Act for removing negligently sunk vessel despite express remedies of in rem action and criminal penalties); United States v. Republic Steel Corp., 362 U.S. 482[, 80 S. Ct. 884, 4 L. Ed. 2d 903 . . .] (1960) (sustaining implied cause of action by United States for an injunction under the Rivers and Harbors Act); Tunstall v. Locomotive Firemen & Enginemen, 323 U.S. 210[, 65 S. Ct. 235, 89 L. Ed. 187. . .] (1944) (sustaining implied cause of action by union member against union for discrimination among members despite existence of Board of Mediation); Sullivan v. Little Hunting Park, Inc., 396 U.S. 229[, 90 S. Ct. 400, 24 L. Ed. 2d 386 . . .] (1969) (sustaining implied private cause of action under 42 U.S.C. § 1982); Allen v. State Board of Elections, 393 U.S. 544[, 89 S. Ct. 817, 22 L. Ed. 2d 1 . . .] (1969) (sustaining implied private cause of action under § 5 of the Voting Rights Act despite the existence of a complex regulatory scheme and explicit rights of action in the Attorney General); and, of course, the aforementioned decisions under the securities laws. As the Supreme Court itself has recognized, the period of the 1960's and early 1970's was one in which the `Court had consistently found implied remedies.' Cannon v. University of Chicago, 441 U.S. 677, 698[, 99 S. Ct. 1946, 60 L. Ed. 2d 560 . . .] (1979)." *781 In a law-changing opinion written by Justice Brennan in 1975, the Court decided to modify its approach to private causes of action. Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (constraining courts to use a strict four-factor test to determine whether Congress intended a private cause of action). A few years later, in Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), we adhered to the strict approach mandated by Cort v. Ash in 1975, but made it clear that "our evaluation of congressional action in 1972 must take into account its contemporary legal context." 441 U.S., at 698-699, 99 S. Ct. 1946. That context persuaded the majority that Congress had intended the courts to authorize a private remedy for members of the protected class. Until Central Bank, the federal courts continued to enforce a broad implied cause of action for the violation of statutes enacted in 1933 and 1934 for the protection of investors. As Judge Friendly explained: "During the late 1940's, the 1950's, the 1960's and the early 1970's there was widespread, indeed almost general, recognition of implied causes of action for damages under many provisions of the Securities Exchange Act, including not only the antifraud provisions, §§ 10 and 15(c)(1), see Kardon v. National Gypsum Co., 69 F. Supp. 512, 513-14 (E.D.Pa.1946); Fischman v. Raytheon Mfg. Co., 188 F.2d 783, 787 (2 Cir.1951) (Frank, J.); Fratt v. Robinson, 203 F.2d 627, 631-33 (9 Cir.1953), but many others. These included the provision, § 6(a)(1), requiring securities exchanges to enforce compliance with the Act and any rule or regulation made thereunder, see Baird v. Franklin, 141 F.2d 238, 239, 240, 244-45 (2 Cir.), cert. denied, 323 U.S. 737[, 65 S. Ct. 38, 89 L. Ed. 591...] (1944), and provisions governing the solicitation of proxies, see J.I. Case Co. v. Borak, 377 U.S. 426, 431-35[, 84 S. Ct. 1555, 12 L. Ed. 2d 423 ...] (1964).... Writing in 1961, Professor Loss remarked with respect to violations of the antifraud provisions that with one exception `not a single judge has expressed himself to the contrary.' 3 Securities Regulation 1763-64. See also Bromberg & Lowenfels, supra, § 2.2(462) (describing 1946-1974 as the `expansion era' in implied causes of action under the securities laws). When damage actions for violation of § 10(b) and Rule 10b-5 reached the Supreme Court, the existence of an implied cause of action was not deemed worthy of extended discussion. Superintendent of Insurance v. Bankers Life & Casualty Co., 404 U.S. 6[, 92 S. Ct. 165, 30 L. Ed. 2d 128 ...] (1971)." Leist, 638 F.2d, at 296-297 (footnote omitted). In light of the history of court-created remedies and specifically the history of implied causes of action under § 10(b), the Court is simply wrong when it states that Congress did not impliedly authorize this private cause of action "when it first enacted the statute." Ante, at 774. Courts near in time to the enactment of the securities laws recognized that the principle in Rigsby applied to the securities laws.[13]*782 Congress enacted § 10(b) with the understanding that federal courts respected the principle that every wrong would have a remedy. Today's decision simply cuts back further on Congress' intended remedy. I respectfully dissent.

Charter Communications, inflated its revenues by $17 million in order to cover up a $15 to $20 million expected cash flow shortfall. It could not have done so absent the knowingly fraudulent actions of Scientific-Atlanta, and Motorola, Investors relied on Charter's revenue statements in deciding whether to invest in Charter and in doing so relied on respondents' fraud, which was itself a "deceptive device" prohibited by 10(b) of the Securities Exchange Act of 1934. 15 U.S.C. 78j(b). This is enough to satisfy the requirements of 10(b) and enough to distinguish this case from Central Bank of Denver, The Court seems to assume that respondents' alleged conduct could subject them to liability in an enforcement proceeding initiated by the Government, ante, at 773, but nevertheless concludes that they are not subject to liability in a private action brought by injured investors because they are, at most, guilty of aiding and abetting a violation of 10(b), rather than an actual violation of the statute. While that conclusion results in an affirmance of the judgment of the Court of Appeals, it rests on a rejection of that court's reasoning. Furthermore, while the Court frequently refers to petitioner's attempt to "expand" the implied cause of action,[1]—a conclusion that begs the question of the contours of that cause of action—it is today's decision that results in a significant departure from Central Bank. The Court's conclusion that no violation of 10(b) giving rise to a private right of action has been alleged in this case rests on two faulty premises: (1) the Court's overly broad reading of Central Bank, and (2) the view that reliance requires a kind of super-causation—a view contrary to both the Securities and Exchange Commission's (SEC) position in a recent Ninth *7 Circuit case[2] and our holding in Basic These two points merit separate discussion. I The Court of Appeals incorrectly based its decision on the view that "[a] device or contrivance is not `deceptive,' within the meaning of 10(b), absent some misstatement or a failure to disclose by one who has a duty to disclose." In re Charter Communications, Securities Litigation, The Court correctly explains why the statute covers nonverbal as well as verbal deceptive conduct. Ante, at 769. The allegations in this case—that respondents produced documents falsely claiming costs had risen and signed contracts they knew to be backdated in order to disguise the connection between the increase in costs and the purchase of advertising—plainly describe "deceptive devices" under any standard reading of the phrase. What the Court fails to recognize is that this case is critically different from Central Bank because the bank in that case did not engage in any deceptive act and, therefore, did not itself violate 10(b). The Court sweeps aside any distinction, remarking that holding respondents liable would "reviv[e] the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud." Ante, at 771. But the fact that Central Bank engaged in no deceptive conduct whatsoever—in other words, that it was at most an aider and abettor—sharply distinguishes Central Bank from cases that do involve allegations of such conduct. (stating that the question presented was "whether private civil liability under 10(b) extends as well to those who do not engage in the manipulative or deceptive practice, but who aid and abet the violation"). The Central Bank of Denver was the indenture trustee for bonds issued by a public authority and secured by liens on property in Colorado Springs. After default, purchasers of $2.1 million of those bonds sued the underwriters, alleging violations of 10(b); they also named Central Bank as a defendant, contending that the bank's delay in reviewing a suspicious appraisal of the value of the security made it liable as an aider and abettor. The facts of this case would parallel those of Central Bank if respondents had, for example, merely delayed sending invoices for set-top boxes to Charter. Conversely, the facts in Central Bank would mirror those in the case before us today if the bank had knowingly purchased real estate in wash transactions at above-market prices in order to facilitate the appraiser's overvaluation of the security. Central Bank, thus, poses no obstacle to petitioner's argument that it has alleged a cause of action under 10(b). II The Court's next faulty premise is that petitioner is required to allege that Scientific-Atlanta and Motorola made it "necessary or inevitable for Charter to record the transactions in the way it did," ante, at 770, in order to demonstrate reliance. Because the Court of Appeals did not base its *776 holding on reliance grounds, see 443 F.3d, at the fairest course to petitioner would be for the majority to remand to the Court of Appeals to determine whether petitioner properly alleged reliance, under a correct view of what 10(b) covers.[3] Because the Court chooses to rest its holding on an absence of reliance, a response is required. In Basic we stated that "[r]eliance provides the requisite causal connection between a defendant's misrepresentation and a plaintiff's injury." The Court's view of the causation required to demonstrate reliance is unwarranted and without precedent. In Basic we held that the "fraud-on-the-market" theory provides adequate support for a presumption in private securities actions that shareholders (or former shareholders) in publicly traded companies rely on public material misstatements that affect the price of the company's stock. The holding in Basic is surely a sufficient response to the argument that a complaint alleging that deceptive acts which had a material effect on the price of a listed stock should be dismissed because the plaintiffs were not subjectively aware of the deception at the time of the securities' purchase or sale. This Court has not held that investors must be aware of the specific deceptive act which violates 10b to demonstrate reliance. The Court is right that a fraud-on-the-market presumption coupled with its view on causation would not support petitioner's view of reliance. The fraud-on-the-market presumption helps investors who cannot demonstrate that they, themselves, relied on fraud that reached the market. But that presumption says nothing about causation from the other side: what an individual or corporation must do in order to have "caused" the misleading information that reached the market. The Court thus has it backwards when it first addresses the fraud-on-the-market presumption, rather than the causation required. See, ante, at 770. The argument is not that the fraud-on-the-market presumption is enough standing alone, but that a correct view of causation coupled with the presumption would allow petitioner to plead reliance. Lower courts have correctly stated that the causation necessary to demonstrate reliance is not a difficult hurdle to clear in a private right of action under 10(b). Reliance is often equated with "`transaction causation.'" Dura Pharmaceuticals, v. Broudo, Transaction causation, in turn, is often defined as requiring an allegation that but for the deceptive act, the plaintiff would not have entered into the securities transaction. See, e.g., ; Even if but-for causation, standing alone, is too weak to establish reliance, petitioner has also alleged that respondents proximately caused Charter's *777 misstatement of income; petitioner has alleged that respondents knew their deceptive acts would be the basis for statements that would influence the market price of Charter stock on which shareholders would rely. Second Amended Consolidated Class Action Complaint ¶¶ 8, 98, 100, 109, App. 19a, 55a-56a, 59a. Thus, respondents' acts had the foreseeable effect of causing petitioner to engage in the relevant securities transactions. The Restatement (Second) of Torts 533, pp. 72-73 (1977), provides that "[t]he maker of a fraudulent misrepresentation is subject to liability if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other." The sham transactions described in the complaint in this case had the same effect on Charter's profit and loss statement as a false entry directly on its books that included $17 million of gross revenues that had not been received. And respondents are alleged to have known that the outcome of their fraudulent transactions would be communicated to investors. The Court's view of reliance is unduly stringent and unmoored from authority. The Court first says that if the petitioner's concept of reliance is adopted the implied cause of action "would reach the whole marketplace in which the issuing company does business." Ante, at 770. The answer to that objection is, of course, that liability only attaches when the company doing business with the issuing company has itself violated 10(b).[4] The Court next relies on what it views as a strict division between the "realm of financing business" and the "ordinary business operations." Ante, at 770. But petitioner's position does not merge the two: A corporation engaging in a business transaction with a partner who transmits false information to the market is only liable where the corporation itself violates 10(b). Such a rule does not invade the province of "ordinary" business transactions. The majority states that "[s]ection 10(b) does not incorporate common-law fraud into federal law," citing Ante, at 771. Of course, not every common-law fraud action that happens to touch upon securities is an action under 10(b), but the Court's opinion in Zandford did not purport to jettison all reference to common-law fraud doctrines from 10(b) cases. In fact, our prior cases explained that to the extent that "the antifraud provisions of the securities laws are not coextensive with common-law doctrines of fraud," it is because common-law fraud doctrines might be too restrictive. Herman & "Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry." I, thus, see no reason to abandon common-law approaches to causation in 10(b) cases. Finally, the Court relies on the course of action Congress adopted after our decision in Central Bank to argue that siding with *778 petitioner on reliance would run contrary to congressional intent. Senate hearings on Central Bank were held within one month of our decision.[5] Less than one year later, Senators Dodd and Domenici introduced S. 240, which became the Private Securities Litigation Reform Act of 1995 (PSLRA),[6] Congress stopped short of undoing Central Bank entirely, instead adopting a compromise which restored the authority of the SEC to enforce aiding and abetting liability.[7] A private right of action based on aiding and abetting violations of 10(b) was not, however, included in the PSLRA,[8] despite support from Senator Dodd and members of the Senate Subcommittee on Securities.[9] This compromise surely provides no support for extending Central Bank in order to immunize an undefined class of actual violators of 10(b) from liability in private litigation. Indeed, as Members of Congress—including those who rejected restoring a private cause of action against aiders and abettors—made clear, private litigation under 10(b) continues to play a vital role in protecting the integrity of our securities markets.[10] That Congress chose *779 not to restore the aiding and abetting liability removed by Central Bank does not mean that Congress wanted to exempt from liability the broader range of conduct that today's opinion excludes. The Court is concerned that such liability would deter overseas firms from doing business in the United States or "shift securities offerings away from domestic capital markets." Ante, at 772. But liability for those who violate 10(b) "will not harm American competitiveness; in fact, investor faith in the safety and integrity of our markets is their strength. The fact that our markets are the safest in the world has helped make them the strongest in the world." Brief for Former SEC Commissioners as Amici Curiae 9. Accordingly, while I recognize that the Central Bank opinion provides a precedent for judicial policymaking decisions in this area of the law, I respectfully dissent from the Court's continuing campaign to render the private cause of action under 10(b) toothless. I would reverse the decision of the Court of Appeals. III While I would reverse for the reasons stated above, I must also comment on the importance of the private cause of action that Congress implicitly authorized when it enacted the Securities Exchange Act of 1934. A theme that underlies the Court's analysis is its mistaken hostility towards the 10(b) private cause of action.[11]Ante, at 772. The Court's current view of implied causes of action is that they are merely a "relic" of our prior "heady days." Correctional Services Those "heady days" persisted for two hundred years. During the first two centuries of this Nation's history much of our law was developed by judges in the common-law tradition. A basic principle animating our jurisprudence was enshrined in state constitution provisions guaranteeing, in substance, that "every wrong shall have a remedy."[12] Fashioning appropriate remedies *780 for the violation of rules of law designed to protect a class of citizens was the routine business of judges. See While it is true that in the early days state law was the source of most of those rules, throughout our history—until 19—the same practice prevailed in federal courts with regard to federal statutes that left questions of remedy open for judges to answer. In Texas & Pacific R. this Court stated the following: "A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law expressed in 1 Com. Dig., tit. Action upon Statute (F), in these words: `So, in every case, where a statute enacts, or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.' (Per Holt, C. J., Anon., 6 Mod. 26, 27.)" Judge Friendly succinctly described the post-Rigsby, pre-19 practice in his opinion in : "Following Rigsby the Supreme Court recognized implied causes of action on numerous occasions, see, e.g., Wyandotte Transportation ; United [, ; [, ; Sullivan v. Little Hunting Park, 6 U.S. 229[, (sustaining implied private cause of action under 42 U.S.C. 1982); 3 U.S. 544[, (sustaining implied private cause of action under 5 of the Voting Rights Act despite the existence of a complex regulatory scheme and explicit rights of action in the Attorney General); and, of course, the aforementioned decisions under the securities laws. As the Supreme Court itself has recognized, the period of the 's and early 1970's was one in which the `Court had consistently found implied remedies.' [," *781 In a law-changing opinion written by Justice Brennan in 19, the Court decided to modify its approach to private causes of action. (constraining courts to use a strict four-factor test to determine whether Congress intended a private cause of action). A few years later, in we adhered to the strict approach mandated by in 19, but made it clear that "our evaluation of congressional action in 1972 must take into account its contemporary legal context." 441 U.S., at -699, That context persuaded the majority that Congress had intended the courts to authorize a private remedy for members of the protected class. Until Central Bank, the federal courts continued to enforce a broad implied cause of action for the violation of statutes enacted in 1933 and 1934 for the protection of investors. As Judge Friendly explained: "During the late 1940's, the 1950's, the 's and the early 1970's there was widespread, indeed almost general, recognition of implied causes of action for damages under many provisions of the Securities Exchange Act, including not only the antifraud provisions, 10 and 15(c)(1), see (E.D.Pa.1946); (2 Cir.1951) (Frank, J.); (9 Cir.1953), but many others. These included the provision, 6(a)(1), requiring securities exchanges to enforce compliance with the Act and any rule or regulation made thereunder, see 2, 240, 244-45 (2 Cir.), cert. denied, and provisions governing the solicitation of proxies, see J.I. Case [, Writing in 1961, Professor Loss remarked with respect to violations of the antifraud provisions that with one exception `not a single judge has expressed himself to the contrary.' 3 Securities Regulation 1763-64. See also Bromberg & 2.2(462) (describing 1946-1974 as the `expansion era' in implied causes of action under the securities laws). When damage actions for violation of 10(b) and Rule 10b-5 reached the Supreme Court, the existence of an implied cause of action was not deemed worthy of extended discussion. Superintendent of [," -297 In light of the history of court-created remedies and specifically the history of implied causes of action under 10(b), the Court is simply wrong when it states that Congress did not impliedly authorize this private cause of action "when it first enacted the statute." Ante, at 774. Courts near in time to the enactment of the securities laws recognized that the principle in Rigsby applied to the securities laws.[13]*782 Congress enacted 10(b) with the understanding that federal courts respected the principle that every wrong would have a remedy. Today's decision simply cuts back further on Congress' intended remedy. I respectfully dissent.

Justice Rehnquist

majority

McMillian v. Monroe County

1997-06-02

https://www.courtlistener.com/opinion/118118/mcmillian-v-monroe-county/

https://www.courtlistener.com/api/rest/v3/clusters/118118/

1996-062

Petitioner sued Monroe County, Alabama, under Rev. Stat. § 1979, 42 U.S. C. § 1983, for allegedly unconstitutional actions taken by Monroe County Sheriff Tom Tate. If the sheriff's actions constitute county "policy," then the county is liable for them. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978). The parties agree that the sheriff is a "policymaker" for § 1983 purposes, but they disagree about whether he is a policymaker for Monroe County or for the State of Alabama. We hold that, as to the actions at issue here, Sheriff Tate represents the State of Alabama and is therefore not a county policymaker. We thus affirm the Court of Appeals' dismissal of petitioner's § 1983 claims against Monroe County. I In November 1986, Ronda Morrison was murdered in Monroe County, a sparsely populated county located in southwest Alabama. Petitioner and one Ralph Myers were indicted for this crime. Myers then pleaded guilty to a lesser offense and testified against petitioner at his trial. A jury convicted petitioner of capital murder, and the trial court sentenced him to death. After two remands, the Alabama Court of Criminal Appeals reversed petitioner's conviction, holding that the State had violated Brady v. Maryland, 373 U.S. 83 (1963), by suppressing statements from Myers that contradicted his trial testimony and other exculpatory evidence. McMillian v. State, 616 So. 2d 933, 942-948 (1993). Thus, after spending six years in prison, petitioner was released. He then brought this § 1983 lawsuit in the District Court for the Middle District of Alabama against respondent Monroe County and numerous officials, including the three men in charge of investigating the Morrison murder—Tom Tate, the Sheriff of Monroe County; Larry Ikner, an investigator with the District Attorney's office in Monroe County; and Simon Benson, an investigator with the Alabama Bureau of *784 Investigation. Only two of the officials were sued in their official capacities—Sheriff Tate and investigator Ikner—and it is only these official-capacity suits that concern us here.[1] Petitioner principally alleged that Tate and Ikner, in their capacities as officials of Monroe County, not as officers of the State of Alabama, intimidated Myers into making false statements and suppressed exculpatory evidence. App. to Pet. for Cert. 26a—33a; McMillian v. Johnson, 878 F. Supp. 1473, 1486-1488 (MD Ala. 1995). The District Court dismissed the claims against Monroe County and the claims against Tate and Ikner in their official capacities. The court held that "any unlawful acts of Defendants Tate and Ikner cannot be said to represent [Monroe] County's policy," because "an Alabama county has [no] authority to make policy in the area of law enforcement." App. to Pet. for Cert. 55a. Petitioner appealed the District Court's decision as to Sheriff Tate. The Court of Appeals for the Eleventh Circuit affirmed, agreeing with the District Court that "Sheriff Tate is not a final policymaker for Monroe County in the area of law enforcement, because Monroe County has no law enforcement authority." McMillian v. Johnson, 88 F.3d 1573, 1583 (1996). We granted certiorari, 519 U.S. 1025 (1996), and now affirm. II A We held in Monell, 436 U. S., at 694, that a local government is liable under § 1983 for its policies that cause constitutional torts. These policies may be set by the government's lawmakers, "or by those whose edicts or acts may fairly be said to represent official policy." Ibid. A court's task is to *785 "identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue." Jett v. Dallas Independent School Dist., 491 U.S. 701, 737 (1989). Here, the parties agree that Sheriff Tate has "final policymaking authority" in the area of law enforcement. They sharply disagree, however, about whether Alabama sheriffs are policymakers for the State or for the county when they act in a law enforcement capacity.[2] In deciding this dispute, our inquiry is guided by two principles. First, the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, "all or nothing" manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue. See ibid. (court must identify "those officials who have the power to make official policy on a particular issue " (emphasis added)); id., at 738 (question is whether school district superintendent "possessed final policymaking authority in the area of employee transfers" (emphasis added)); St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion) ("[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business"). Thus, we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents *786 the State or the county when he acts in a law enforcement capacity. Second, our inquiry is dependent on an analysis of state law. Cf. Jett, supra, at 737 ("`[W]hether a particular official has "final policymaking authority" is a question of state law ` " (quoting, with original emphasis, Praprotnik, supra, at 123 (plurality opinion))); Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986) (plurality opinion) (same). This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law. Cf. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5 (1997) ("[The] federal question can be answered only after considering the provisions of state law that define the agency's character"). B The Court of Appeals for the Eleventh Circuit determined that under Alabama law, a sheriff acting in his law enforcement capacity is not a policymaker for the county. Since the jurisdiction of the Court of Appeals includes Alabama, we defer considerably to that court's expertise in interpreting Alabama law.[3] See Jett, supra, at 738 ("We think the Court of Appeals [for the Fifth Circuit], whose expertise in interpreting Texas law is greater than our own, is in a better position to determine whether [the school district superintendent] possessed final policymaking authority in the area of employee transfers"); Pembaur, supra, at 484, n. 13 ("We *787 generally accord great deference to the interpretation and application of state law by the courts of appeals"). We begin with the Alabama Constitution, "the supreme law of the state." Alexander v. State ex rel. Carver, 150 So. 2d 204, 208 (Ala. 1963). We agree with the Court of Appeals that the constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the Alabama Supreme Court strongly support Monroe County's contention that sheriffs represent the State, at least for some purposes. Alabama's Constitution, adopted in 1901, states that "[t]he executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county." Ala. Const. of 1901, Art. V, § 112. This designation is especially important for our purposes, because although every Alabama Constitution has included sheriffs as constitutional officers and has provided for their election by county voters, see Ala. Const. of 1819, Art. IV, § 24; Ala. Const. of 1861, Art. IV, § 24; Ala. Const. of 1865, Art. VII, § 3; Ala. Const. of 1867, Art. V, § 21; Ala. Const. of 1875, Art. V, § 26; Ala. Const. of 1901, Art. V, § 138, sheriffs have not always been explicitly listed as members of the state "executive department." Thus, the 1867 Constitution listed only the "governor, lieutenant governor, secretary of state, auditor, treasurer, and attorney general" as constituting "the executive department." Ala. Const. of 1867, Art. V, § 1. This changed with the 1875 Constitution, when sheriffs and the superintendent of education were added to the list. Ala. Const. of 1875, Art. V, § 1.[4] *788 The framers of the 1901 Constitution took two significant steps in an attempt to solidify the place of sheriffs in the executive department, and to clarify that sheriffs were acting for the State when exercising their law enforcement functions. First, faced with reports that sheriffs were allowing mobs to abduct prisoners and lynch them, the framers made such "neglect" by sheriffs an impeachable offense. See Ala. Const. of 1901, Art. V, § 138 ("Whenever any prisoner is taken from jail, or from the custody of any sheriff or his deputy, and put to death, or suffers grievous bodily harm, owing to the neglect, connivance, cowardice, or other grave fault of the sheriff, such sheriff may be impeached"); State ex rel. Garber v. Cazalas, 162 Ala. 210, 50 So. 296 (1909) (sheriff's failure to close jaildoors, resulting in lynching of prisoner, constitutes impeachable offense); M. McMillan, Constitutional Development in Alabama, 1789-1901, p. 338, n. 186 (1955) (impeachment provision resulted in "much progress made against lynching"). Second, authority to impeach sheriffs was moved from the county courts to the State Supreme Court, because of "[t]he failure of county courts to punish sheriffs for neglect of duty." Parker v. Amerson, 519 So. 2d 442, 443 (Ala. 1987). One of the primary purposes of this change, proposed by ex-Governor Thomas Goode Jones at the 1901 Convention, was "to augment the power of the Governor." Id., at 444. After this change, the Governor could order the State Supreme Court, rather than the county court, to begin impeachment proceedings against a wayward sheriff, and would not have to worry that local support for the sheriff would annul his effort at centralized control. See ibid.; Strengthening the Power of the Executive, Address of Emmet O'Neal, Governor of Alabama, pp. 9-10 (Sept. 12, 1911) (new impeachment provision increases Governor's control of sheriffs and "gives the Executive real power which is respected and feared"). Thus, sheriffs now share the same impeachment procedures as state legal officers and lower state court judges, Ala. Const. of 1901, Art. VII, § 174, *789 rather than county and municipal officers, Ala. Const. of 1875, Art. VII, § 3. Critically for our case, the Alabama Supreme Court has interpreted these provisions and their historical background as evidence of "the framers' intent to ensure that sheriffs be considered executive officers of the state." Parker, 519 So. 2d, at 444. Based primarily on this understanding of the State Constitution, the court has held unequivocally that sheriffs are state officers, and that tort claims brought against sheriffs based on their official acts therefore constitute suits against the State, not suits against the sheriff's county. Id., at 443-445.[5] Thus, Alabama counties are not liable under a theory of respondeat superior for a sheriff's official acts that are tortious. Id., at 442. The issues in Parker are strikingly similar to the ones in the present case, and that decision is therefore strong evidence in favor of the Court of Appeals' conclusion that sheriffs act on behalf of the State, rather than the county, when acting in their law enforcement capacity. Turning from the Alabama Constitution to the Alabama Code, the relevant provisions are less compelling, but still support the conclusion of the Court of Appeals to some extent. Section 36-22-3 of the code sets out a sheriff's duties. First, a sheriff must "attend upon" the state courts in his county, must "obey the lawful orders and directions" of those courts, and must "execute and return the process and orders" of any state court, even those outside his county. Ala. Code §§ 36-22-3(1), (2) (1991). Thus, judges (who are state officers, see Ala. Const. of 1901, Amdt. 328, § 6.01) may order *790 the sheriff to take certain actions, even if the judge sits in a distant county. And under Ala. Code § 12-17-24 (1995), the presiding circuit judge "exercise[s] a general supervision" over the county sheriffs in his circuit,[6] just as if the sheriffs are normal "court [i. e., state] employees," see § 12-17-1. Second, the sheriff must give to the county treasurer a sworn written statement detailing the funds he has received for the county since his last statement, and must pay these funds to the treasurer. § 36-22-3(3). In contrast to the state judges, however, the county treasurer does not appear to have any statutory authority to direct the sheriff to take specific actions. Third and most importantly, "[i]t shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes in their counties and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county." § 36-22-3(4). By this mandate, sheriffs are given complete authority to enforce the state criminal law in their counties. In contrast, the "powers and duties" of the counties themselves—creatures of the State who have only the powers granted to them by the State, Alexander, 150 So. 2d, at 206—do not include any provision in the area of law enforcement. Ala. Code § 11-3—11 (1989). Thus, the "governing body" of the counties—which in every Alabama county is the county commission, see Calvert v. Cullman County Comm'n, 669 So. 2d 119 (Ala. 1995) (citing § 11— 1-5)—cannot instruct the sheriff how to ferret out crime, how to arrest a criminal, or how to secure evidence of a crime. And when the sheriff does secure such evidence, he has an obligation to share this information not with the county commission, but with the district attorney (a state official, see Hooks v. Hitt, 539 So. 2d 157, 159 (Ala. 1988)). *791 While the county commission thus has no direct control over how the sheriff fulfills his law enforcement duty, the Governor and the attorney general do have this kind of control. Pursuant to § 36-22-5, they can direct the sheriff to investigate "any alleged violation of law in their counties." And after "proceed[ing] promptly" to complete this investigation, the sheriff must "promptly" write a report to the state official in charge of the investigation, stating his findings, listing the witnesses he has secured, and summarizing what the witnesses can prove. Ibid. In addition, the salaries of all sheriffs are set by the state legislature, not by the county commissions. § 36-22-16. To all of this, petitioner counters with four important provisions that cut in favor of the conclusion that sheriffs are county officials. First, the sheriff's salary is paid "out of the county treasury." Ibid. Second, the county provides the sheriff with equipment (including cruisers), supplies, lodging, and reimbursement for expenses, to the extent "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office." § 36-22-18. Third, the sheriff's jurisdiction is limited to the borders of his county. See, e. g., § 36-22-3(4) ("It shall be the duty of sheriffs in their respective counties . . . to ferret out crime" (emphasis added)). Fourth, the sheriff is elected locally by the voters in his county (as he has been since Alabama's 1819 Constitution). See Ala. Const. of 1901, Art. V, § 138; Ala. Const. of 1819, Art. IV, § 24. We do not find these provisions sufficient to tip the balance in favor of petitioner. The county's payment of the sheriff's salary does not translate into control over him, since the county neither has the authority to change his salary nor the discretion to refuse payment completely. The county commissions do appear to have the discretion to deny funds to the sheriffs for their operations beyond what is "reasonably necessary." See Etowah County Comm'n v. Hayes, 569 So. 2d 397, 399 (Ala. 1990) (per curiam). But at most, this *792 discretion would allow the commission to exert an attenuated and indirect influence over the sheriff's operations. Petitioner's contention that sheriffs are county officials because "state policymakers" typically make policy for the entire State (without limits on their jurisdiction) and are typically elected on a statewide (not local) basis, surely has some force. But district attorneys and state judges are often considered (and in Alabama are considered) state officials, even though they, too, have limited jurisdictions and are elected locally. These characteristics are therefore consistent with an understanding of the 67 Alabama sheriffs as state officials who have been locally placed throughout the State, with an element of control granted to the officials and residents of the county that receives the sheriff's services.[7] *793 In sum, although there is some evidence in Alabama law that supports petitioner's argument, we think the weight of the evidence is strongly on the side of the conclusion reached by the Court of Appeals: Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties. Cf. Praprotnik, 485 U. S., at 125 ("We are not, of course, predicting that state law will always speak with perfect clarity"); id., at 126-127 ("It may not be possible to draw an elegant line that will resolve this conundrum"). C Petitioner argues that this conclusion will create a lack of uniformity in Alabama and throughout the country. First, he argues that it is anomalous to have 67 different "state policymakers" in the person of Alabama's 67 county sheriffs, all of whom may have different "state law enforcement policies" in their counties. Second, he points out that most Federal Courts of Appeals have found county sheriffs to be county, not state, officials, and he implies that our affirmance of the Court of Appeals will either call those decisions into question or create an unacceptable patchwork of rulings as to § 1983 liability of counties for the acts of their sheriffs. We reject both arguments: The first ignores the history of sheriffs, and the second ignores our Nation's federal nature. English sheriffs (or "shire-reeves") were the King `s "reeves" (officers or agents) in the "shires" (counties), at least after the Norman Conquest in 1066. See C. Wigan & D. Meston, Mather on Sheriff and Execution Law 1-2 (1935). Although chosen locally by the shire's inhabitants, the sheriff did "all the king's business in the county," 1 W. Blackstone, Commentaries on the Laws of England 328 (1765), and was "the keeper of the king's peace," id., at 332. See also Wigan & Meston, supra, at 2 ("It is this position of the Sheriff *794 as the executive officer of the Crown which has all along been the outstanding characteristic of the office"). As the basic forms of English government were transplanted in our country, it also became the common understanding here that the sheriff, though limited in jurisdiction to his county and generally elected by county voters,[8] was in reality an officer of the State, and ultimately represented the State in fulfilling his duty to keep the peace. See, e. g., Wager, Introduction, in County Government Across the Nation 5 (P. Wager ed. 1950) ("The office of sheriff has an unbroken lineage from the Anglo-Saxon shire-reeve "); 1 W. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables 5 (1941) ("In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he (the sheriff) represents the sovereignty of the State and he has no superior in his county"); R. Cooley, Handbook on the Law of Municipal Corporations 512 (1914) ("Sheriffs, coroners, clerks and other so-called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the affairs of state in the county"); 3 J. Bouvier, Bouvier's Law Dictionary 3058 (8th ed. 1914) (defining sheriff as "[a] county officer representing the executive or administrative power of the state within his county"). This historical sketch indicates that the common law itself envisioned the possibility that state law enforcement "policies" might vary locally, as particular sheriffs adopted varying practices for arresting criminals or securing evidence.[9]*795 Thus, petitioner's disagreement with the concept that "county sheriffs" may actually be state officials is simply a disagreement with the ancient understanding of what it has meant to be a sheriff. Petitioner's second concern is that under our holding here, sheriffs will be characterized differently in different States. But while it might be easier to decide cases arising under § 1983 and Monell if we insisted on a uniform, national characterization for all sheriffs, such a blunderbuss approach would ignore a crucial axiom of our government: the States have wide authority to set up their state and local governments as they wish. Understandably, then, the importance of counties and the nature of county government have varied historically from region to region, and from State to State. See, e. g., Wager, supra, at 5-8 (describing different systems of rural government that developed in the Massachusetts, New York, Pennsylvania, and Virginia colonies, which later resulted in counties having widely varying roles in the four regions); Martin, American County Government, in County Governments in an Era of Change 3-5 (P. Berman ed. 1993) (same); DeSantis & Renner, Governing the County, id., at 16-25 (describing varying levels of power currently exercised by counties in different States, and explaining how regional influences have resulted in different forms of county government in different States); id., at 19 (listing Alabama as 37th among the 50 States in amount of discretionary authority granted to its counties). Thus, since it is entirely natural that both the role of sheriffs and the importance of counties vary from State to State, there is no inconsistency created by court decisions that declare sheriffs to be county officers in one State, and not in another.[10] *796 The final concern of petitioner and his amici is that state and local governments will manipulate the titles of local officials in a blatant effort to shield the local governments from liability. But such efforts are already foreclosed by our decision in Praprotnik. See 485 U.S., at 127 (plurality opinion) ("[E]gregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded" by allowing plaintiffs to prove that "a widespread practice" has been established by "`custom or usage' with the force of law"). And there is certainly no evidence of such manipulation here; indeed, the Alabama provisions that cut most strongly against petitioner's position predate our decision in Monell by some time. The judgment of the Court of Appeals is therefore Affirmed.

Petitioner sued Monroe County, Alabama, under Rev. Stat. 1979, 42 U.S. C. 1983, for allegedly unconstitutional actions taken by Monroe County Sheriff Tom Tate. If the sheriff's actions constitute county "policy," then the county is liable for them. The parties agree that the sheriff is a "policymaker" for 1983 purposes, but they disagree about whether he is a policymaker for Monroe County or for the State of Alabama. We hold that, as to the actions at issue here, Sheriff Tate represents the State of Alabama and is therefore not a county policymaker. We thus affirm the Court of Appeals' dismissal of petitioner's 1983 claims against Monroe County. I In November 1986, Ronda Morrison was murdered in Monroe County, a sparsely populated county located in southwest Alabama. Petitioner and one Ralph Myers were indicted for this crime. Myers then pleaded guilty to a lesser offense and testified against petitioner at his trial. A jury convicted petitioner of capital murder, and the trial court sentenced him to death. After two remands, the Alabama Court of Criminal Appeals reversed petitioner's conviction, holding that the State had violated by suppressing statements from Myers that contradicted his trial testimony and other exculpatory evidence. Thus, after spending six years in prison, petitioner was released. He then brought this 1983 lawsuit in the District Court for the Middle District of Alabama against respondent Monroe County and numerous officials, including the three men in charge of investigating the Morrison murder—Tom Tate, the Sheriff of Monroe County; Larry Ikner, an investigator with the District Attorney's office in Monroe County; and Simon Benson, an investigator with the Alabama Bureau of *784 Investigation. Only two of the officials were sued in their official capacities—Sheriff Tate and investigator Ikner—and it is only these official-capacity suits that concern us here.[1] Petitioner principally alleged that Tate and Ikner, in their capacities as officials of Monroe County, not as officers of the State of Alabama, intimidated Myers into making false statements and suppressed exculpatory evidence. App. to Pet. for Cert. 26a—33a; The District Court dismissed the claims against Monroe County and the claims against Tate and Ikner in their official capacities. The court held that "any unlawful acts of Defendants Tate and Ikner cannot be said to represent [Monroe] County's policy," because "an Alabama county has [no] authority to make policy in the area of law enforcement." App. to Pet. for Cert. 55a. Petitioner appealed the District Court's decision as to Sheriff Tate. The Court of Appeals for the Eleventh Circuit affirmed, agreeing with the District Court that "Sheriff Tate is not a final policymaker for Monroe County in the area of law enforcement, because Monroe County has no law enforcement authority." We granted certiorari, and now affirm. II A We held in 436 U. S., at that a local government is liable under 1983 for its policies that cause constitutional torts. These policies may be set by the government's lawmakers, "or by those whose edicts or acts may fairly be said to represent official policy." A court's task is to *785 "identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue." Here, the parties agree that Sheriff Tate has "final policymaking authority" in the area of law enforcement. They sharply disagree, however, about whether Alabama sheriffs are policymakers for the State or for the county when they act in a law enforcement capacity.[2] In deciding this dispute, our inquiry is guided by two principles. First, the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, "all or nothing" manner. Our cases on the liability of local governments under 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue. See ; ; St. ("[T]he challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business"). Thus, we are not seeking to make a characterization of Alabama sheriffs that will hold true for every type of official action they engage in. We simply ask whether Sheriff Tate represents *786 the State or the county when he acts in a law enforcement capacity. Second, our inquiry is dependent on an analysis of state law. Cf. at ("`[W]hether a particular official has "final policymaking authority" is a question of state law ` " (quoting, with original emphasis, at )); (same). This is not to say that state law can answer the question for us by, for example, simply labeling as a state official an official who clearly makes county policy. But our understanding of the actual function of a governmental official, in a particular area, will necessarily be dependent on the definition of the official's functions under relevant state law. Cf. Regents of Univ. of B The Court of Appeals for the Eleventh Circuit determined that under Alabama law, a sheriff acting in his law enforcement capacity is not a policymaker for the county. Since the jurisdiction of the Court of Appeals includes Alabama, we defer considerably to that court's expertise in interpreting Alabama law.[3] See ; We begin with the Alabama Constitution, "the supreme law of the state." We agree with the Court of Appeals that the constitutional provisions concerning sheriffs, the historical development of those provisions, and the interpretation given them by the Alabama Supreme Court strongly support Monroe County's contention that sheriffs represent the State, at least for some purposes. Alabama's Constitution, adopted in 1901, states that "[t]he executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries, and a sheriff for each county." Ala. Const. of 1901, Art. V, 112. This designation is especially important for our purposes, because although every Alabama Constitution has included sheriffs as constitutional officers and has provided for their election by county voters, see Ala. Const. of 1819, Art. IV, 24; Ala. Const. of 1861, Art. IV, 24; Ala. Const. of 1865, Art. VII, 3; Ala. Const. of 1867, Art. V, 21; Ala. Const. of 1875, Art. V, 26; Ala. Const. of 1901, Art. V, 138, sheriffs have not always been explicitly listed as members of the state "executive department." Thus, the 1867 Constitution listed only the "governor, lieutenant governor, secretary of state, auditor, treasurer, and attorney general" as constituting "the executive department." Ala. Const. of 1867, Art. V, 1. This changed with the 1875 Constitution, when sheriffs and the superintendent of education were added to the list. Ala. Const. of 1875, Art. V, 1.[4] *788 The framers of the 1901 Constitution took two significant steps in an attempt to solidify the place of sheriffs in the executive department, and to clarify that sheriffs were acting for the State when exercising their law enforcement functions. First, faced with reports that sheriffs were allowing mobs to abduct prisoners and lynch them, the framers made such "neglect" by sheriffs an impeachable offense. See Ala. Const. of 1901, Art. V, 138 ("Whenever any prisoner is taken from jail, or from the custody of any sheriff or his deputy, and put to death, or suffers grievous bodily harm, owing to the neglect, connivance, cowardice, or other grave fault of the sheriff, such sheriff may be impeached"); State ex rel. ; M. McMillan, Constitutional Development in Alabama, 1789-1901, p. 338, n. 186 (1955) (impeachment provision resulted in "much progress made against lynching"). Second, authority to impeach sheriffs was moved from the county courts to the State Supreme Court, because of "[t]he failure of county courts to punish sheriffs for neglect of duty." One of the primary purposes of this change, proposed by ex-Governor Thomas Goode Jones at the 1901 Convention, was "to augment the power of the Governor." After this change, the Governor could order the State Supreme Court, rather than the county court, to begin impeachment proceedings against a wayward sheriff, and would not have to worry that local support for the sheriff would annul his effort at centralized control. See ; Strengthening the Power of the Executive, Address of Emmet O'Neal, Governor of Alabama, pp. 9-10 (Sept. 12, 1911) (new impeachment provision increases Governor's control of sheriffs and "gives the Executive real power which is respected and feared"). Thus, sheriffs now share the same impeachment procedures as state legal officers and lower state court judges, Ala. Const. of 1901, Art. VII, 174, *789 rather than county and municipal officers, Ala. Const. of 1875, Art. VII, 3. Critically for our case, the Alabama Supreme Court has interpreted these provisions and their historical background as evidence of "the framers' intent to ensure that sheriffs be considered executive officers of the state." 519 So. 2d, Based primarily on this understanding of the State Constitution, the court has held unequivocally that sheriffs are state officers, and that tort claims brought against sheriffs based on their official acts therefore constitute suits against the State, not suits against the sheriff's county. at -445.[5] Thus, Alabama counties are not liable under a theory of respondeat superior for a sheriff's official acts that are tortious. The issues in are strikingly similar to the ones in the present case, and that decision is therefore strong evidence in favor of the Court of Appeals' conclusion that sheriffs act on behalf of the State, rather than the county, when acting in their law enforcement capacity. Turning from the Alabama Constitution to the Alabama Code, the relevant provisions are less compelling, but still support the conclusion of the Court of Appeals to some extent. Section 36-22-3 of the code sets out a sheriff's duties. First, a sheriff must "attend upon" the state courts in his county, must "obey the lawful orders and directions" of those courts, and must "execute and return the process and orders" of any state court, even those outside his county. Ala. Code 36-22-3(1), (2) (1991). Thus, judges (who are state officers, see Ala. Const. of 1901, Amdt. 328, 6.01) may order *790 the sheriff to take certain actions, even if the judge sits in a distant county. And under Ala. Code 12-17-24 the presiding circuit judge "exercise[s] a general supervision" over the county sheriffs in his circuit,[6] just as if the sheriffs are normal "court [i. e., state] employees," see 12-17-1. Second, the sheriff must give to the county treasurer a sworn written statement detailing the funds he has received for the county since his last statement, and must pay these funds to the treasurer. 36-22-3(3). In contrast to the state judges, however, the county treasurer does not appear to have any statutory authority to direct the sheriff to take specific actions. Third and most importantly, "[i]t shall be the duty of sheriffs in their respective counties, by themselves or deputies, to ferret out crime, to apprehend and arrest criminals and, insofar as within their power, to secure evidence of crimes in their counties and to present a report of the evidence so secured to the district attorney or assistant district attorney for the county." 36-22-3(4). By this mandate, sheriffs are given complete authority to enforce the state criminal law in their counties. In contrast, the "powers and duties" of the counties themselves—creatures of the State who have only the powers granted to them by the State, —do not include any provision in the area of law enforcement. Ala. Code 11-3—11 Thus, the "governing body" of the counties—which in every Alabama county is the county commission, see (citing 11— 1-5)—cannot instruct the sheriff how to ferret out crime, how to arrest a criminal, or how to secure evidence of a crime. And when the sheriff does secure such evidence, he has an obligation to share this information not with the county commission, but with the district attorney ). *791 While the county commission thus has no direct control over how the sheriff fulfills his law enforcement duty, the Governor and the attorney general do have this kind of control. Pursuant to 36-22-5, they can direct the sheriff to investigate "any alleged violation of law in their counties." And after "proceed[ing] promptly" to complete this investigation, the sheriff must "promptly" write a report to the state official in charge of the investigation, stating his findings, listing the witnesses he has secured, and summarizing what the witnesses can prove. In addition, the salaries of all sheriffs are set by the state legislature, not by the county commissions. 36-22-16. To all of this, petitioner counters with four important provisions that cut in favor of the conclusion that sheriffs are county officials. First, the sheriff's salary is paid "out of the county treasury." Second, the county provides the sheriff with equipment (including cruisers), supplies, lodging, and reimbursement for expenses, to the extent "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office." 36-22-18. Third, the sheriff's jurisdiction is limited to the borders of his county. See, e. g., 36-22-3(4) ("It shall be the duty of sheriffs in their respective counties to ferret out crime" (emphasis added)). Fourth, the sheriff is elected locally by the voters in his county (as he has been since Alabama's 1819 Constitution). See Ala. Const. of 1901, Art. V, 138; Ala. Const. of 1819, Art. IV, 24. We do not find these provisions sufficient to tip the balance in favor of petitioner. The county's payment of the sheriff's salary does not translate into control over him, since the county neither has the authority to change his salary nor the discretion to refuse payment completely. The county commissions do appear to have the discretion to deny funds to the sheriffs for their operations beyond what is "reasonably necessary." See Etowah County But at most, this *792 discretion would allow the commission to exert an attenuated and indirect influence over the sheriff's operations. Petitioner's contention that sheriffs are county officials because "state policymakers" typically make policy for the entire State (without limits on their jurisdiction) and are typically elected on a statewide (not local) basis, surely has some force. But district attorneys and state judges are often considered (and in Alabama are considered) state officials, even though they, too, have limited jurisdictions and are elected locally. These characteristics are therefore consistent with an understanding of the 67 Alabama sheriffs as state officials who have been locally placed throughout the State, with an element of control granted to the officials and residents of the county that receives the sheriff's services.[7] *793 In sum, although there is some evidence in Alabama law that supports petitioner's argument, we think the weight of the evidence is strongly on the side of the conclusion reached by the Court of Appeals: Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties. Cf. ; C Petitioner argues that this conclusion will create a lack of uniformity in Alabama and throughout the country. First, he argues that it is anomalous to have 67 different "state policymakers" in the person of Alabama's 67 county sheriffs, all of whom may have different "state law enforcement policies" in their counties. Second, he points out that most Federal Courts of Appeals have found county sheriffs to be county, not state, officials, and he implies that our affirmance of the Court of Appeals will either call those decisions into question or create an unacceptable patchwork of rulings as to 1983 liability of counties for the acts of their sheriffs. We reject both arguments: The first ignores the history of sheriffs, and the second ignores our Nation's federal nature. English sheriffs (or "shire-reeves") were the King `s "reeves" (officers or agents) in the "shires" (counties), at least after the Norman Conquest in 1066. See C. Wigan & D. Mather on Sheriff and Execution Law 1-2 (1935). Although chosen locally by the shire's inhabitants, the sheriff did "all the king's business in the county," 1 W. Blackstone, Commentaries on the Laws of England 328 (1765), and was "the keeper of the king's peace," See also Wigan & As the basic forms of English government were transplanted in our country, it also became the common understanding here that the sheriff, though limited in jurisdiction to his county and generally elected by county voters,[8] was in reality an officer of the State, and ultimately represented the State in fulfilling his duty to keep the peace. See, e. g., Introduction, in County Government Across the Nation 5 (P. ed. 1950) ("The office of sheriff has an unbroken lineage from the Anglo-Saxon shire-reeve "); 1 W. Anderson, A Treatise on the Law of Sheriffs, Coroners and Constables 5 (1941) ("In the exercise of executive and administrative functions, in conserving the public peace, in vindicating the law, and in preserving the rights of the government, he (the sheriff) represents the sovereignty of the State and he has no superior in his county"); R. Cooley, Handbook on the Law of Municipal Corporations 512 (1914) ("Sheriffs, coroners, clerks and other so-called county officers are properly state officers for the county. Their functions and duties pertain chiefly to the affairs of state in the county"); 3 J. Bouvier, Bouvier's Law Dictionary 3058 (8th ed. 1914) (defining sheriff as "[a] county officer representing the executive or administrative power of the state within his county"). This historical sketch indicates that the common law itself envisioned the possibility that state law enforcement "policies" might vary locally, as particular sheriffs adopted varying practices for arresting criminals or securing evidence.[9]*795 Thus, petitioner's disagreement with the concept that "county sheriffs" may actually be state officials is simply a disagreement with the ancient understanding of what it has meant to be a sheriff. Petitioner's second concern is that under our holding here, sheriffs will be characterized differently in different States. But while it might be easier to decide cases arising under 1983 and if we insisted on a uniform, national characterization for all sheriffs, such a blunderbuss approach would ignore a crucial axiom of our government: the States have wide authority to set up their state and local governments as they wish. Understandably, then, the importance of counties and the nature of county government have varied historically from region to region, and from State to State. See, e. g., ; Martin, American County Government, in County Governments in an Era of Change 3-5 (same); DeSantis & Renner, Governing the County, ; (listing Alabama as 37th among the 50 States in amount of discretionary authority granted to its counties). Thus, since it is entirely natural that both the role of sheriffs and the importance of counties vary from State to State, there is no inconsistency created by court decisions that declare sheriffs to be county officers in one State, and not in another.[10] *796 The final concern of petitioner and his amici is that state and local governments will manipulate the titles of local officials in a blatant effort to shield the local governments from liability. But such efforts are already foreclosed by our decision in See ("[E]gregious attempts by local governments to insulate themselves from liability for unconstitutional policies are precluded" by allowing plaintiffs to prove that "a widespread practice" has been established by "`custom or usage' with the force of law"). And there is certainly no evidence of such manipulation here; indeed, the Alabama provisions that cut most strongly against petitioner's position predate our decision in by some time. The judgment of the Court of Appeals is therefore Affirmed.

Justice Ginsburg

dissenting

McMillian v. Monroe County

1997-06-02

https://www.courtlistener.com/opinion/118118/mcmillian-v-monroe-county/

https://www.courtlistener.com/api/rest/v3/clusters/118118/

1996-062

Petitioner Walter McMillian, convicted of capital murder, spent nearly six years on Alabama's Death Row. In 1993, the Alabama Court of Criminal Appeals determined that government officials, including the Sheriff of Monroe County, had concealed evidence of McMillian's innocence. Based on that evidence, the court overturned the conviction. The State thereafter dismissed all charges against McMillian and released him from prison. *797 Seeking redress for an arrest and years of incarceration in violation of his federal constitutional rights, McMillian commenced the instant action under 42 U.S. C. § 1983. He named as defendants both Monroe County and the County's Sheriff, Tom Tate. McMillian alleged that Sheriff Tate withheld exculpatory evidence, generated false, inculpatory evidence, and subjected him to gross racial insults and relentless intimidation. Sheriff Tate, it is uncontested, has "final policymaking authority" under Alabama law over matters of law enforcement in Monroe County. Our precedent instructs that, if the sheriff makes policy for the State, Monroe County would not be accountable, under § 1983, for that policy; if, on the other hand, the sheriff acts as law enforcement policymaker for Monroe County, then the county would be answerable under § 1983. See Monell v. New York City Dept. of Social Servs. , 436 U.S. 658, 694 (1978). Alabama has 67 county sheriffs, each elected, paid, and equipped locally, each with countywide, not statewide, authority. Unlike judges who work within the State's judicial hierarchy, or prosecutors who belong to a prosecutorial corps superintended by the State's Attorney General, sheriffs are not part of a state command and serve under no "State Sheriff General." The Court, nonetheless, holds that the policies set by Sheriff Tate in Monroe County, though discrete from, and uncoordinated with, the policies of sheriffs in other counties, "may fairly be said to represent [Alabama] policy." See ibid. I disagree. I In my view, Alabama law defining the office of sheriff indicates that the sheriff acts within and for the county when setting and implementing law enforcement policy.[1] In explaining *798 why it concludes otherwise and deems the sheriff the State's, not the county's, policymaker, the Court leans heavily on provisions of the State's Constitution. The Court relies on the Alabama Constitution's designation of "a sheriff for each county" as a member of the State's "executive department." See Ala. Const., Art. V, § 112; ante, at 787. In addition, the Court points to two 1901 amendments relating to the impeachment of sheriffs. See ante, at 788-789. These measures are the strongest supports for the Court's classification of county sheriffs as state actors. They are not sturdy enough, however, to justify the Court's holding that county sheriffs are state officials. Alabama law does not consistently designate sheriffs as "executive department" officers; instead, Alabama law in several instances refers to sheriffs as county officials. See In re Opinions of Justices, 225 Ala. 359, 143 So. 345 (1932) (sheriffs are county officers for purposes of 1912 constitutional amendment regarding county officers' salaries); Ala. Code § 36-3—4(a) (1991) (sheriff, a "county officer," shall be elected to four-year term); Ala. Code § 36-22-16(a) (1991) (sheriffs shall be compensated out of the county treasury in same manner as "other county employees"). Moreover, designations Alabama attaches to sheriffs in its laws and decisions are not dispositive of a court's assessment of Sheriff Tate's status for § 1983 purposes. Cf. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429, n. 5 (1997); Howlett v. Rose, 496 U.S. 356, 376 (1990) (defenses to § 1983 actions are questions of federal law); Martinez v. California, 444 U.S. 277, 284, and n. 8 (1980) (state law granting immunity to parole officers does not control question whether such officers have immunity under § 1983). If a State's designation sufficed to answer the federal question at issue, "States would then be *799 free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People." Howlett, 496 U. S., at 383. Nor are the 1901 impeachment measures secure indicators that a sheriff acts on behalf of the State, not the county. As the Court explains, the impeachment amendments were intended to provide a state check on county sheriffs in view of their glaring lapses in acquiescing to abductions and lynchings in the late 1800's. See ante, at 788. However, making an officer eligible for impeachment, by itself, does not change the governmental unit to which the officer belongs. See Ala. Const., Art. VII, § 175 (listing numerous county officials subject to impeachment); Ala. Code § 36-11— 1(a) (1991) (same). And transferring impeachment proceedings from county courts to the State Supreme Court, see Ala. Const., Art. VII, § 174, is sensibly seen as an acknowledgment of the power wielded by sheriffs within their own counties, and the consequent need for placement of removal authority outside a sheriff's bailiwick. Furthermore, impeachment of sheriffs is not a power reserved exclusively to state officials; "five resident taxpayers" of the sheriff's county can initiate an impeachment. See Ala. Code § 36— 11-6 (1991). Impeachment, in sum, provides an ultimate check on flagrant behavior, but does not serve as a tight control rein. The prime controllers of a sheriff's service are the county residents, the people who select their sheriff at quadrennial elections. Sheriff Tate owes his position as chief law enforcement officer of Monroe County to the county residents who elected him, and who can unseat him. See Ala. Const., Art. V, § 138, as amended by Amdt. No. 35 ("A sheriff shall be elected in each county by the qualified electors thereof. . . ."). On the ballot, candidates for the office of sheriff are grouped with candidates for other county offices, and are not listed with state office candidates. See Ala. Code § 17-8—5 (1995). *800 Traditionally, Alabama sheriffs have had autonomy to formulate and execute law enforcement policy within the geographic confines of their counties. Under Alabama law, "[i]t shall be the duty of sheriffs in their respective counties . . . to ferret out crime, to apprehend and arrest criminals and. . . to secure evidence of crimes." Ala. Code § 36-22-3(4) (1991) (emphasis added); see also Ala. Code § 15-6—1 (1995) ("The sheriff is the principal conservator of the peace in his county, and it is his duty to suppress riots, unlawful assemblies and affrays. In the execution of such duty, he may summon to his aid as many of the men of his county as he thinks proper." (emphasis added)); § 15-10-1 (sheriffs may make arrests "within their respective counties"). Monroe County pays Sheriff Tate's salary, see Ala. Code § 36-22-16(a) (1991) (sheriffs shall be paid "out of the county treasury as the salaries of other county employees are paid"), and the sheriff operates out of an office provided, furnished, and equipped by the county, see § 36-22-18. The obligation to fully equip the sheriff is substantial, requiring a county commission to "furnish the sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment, including automobiles and necessary repairs, maintenance and all expenses incidental thereto." Ibid. These obligations are of practical importance, for they mean that purse strings can be pulled at the county level; a county is obliged to provide a sheriff only what is "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office," ibid. (emphasis added). How generously the sheriff will be equipped is likely to influence that officer's day-to-day conduct to a greater extent than the remote prospect of impeachment. See ibid.; see also Geneva Cty. Comm'n v. Tice, 578 So. 2d 1070, 1075 (Ala. 1991) (county may reasonably limit budget for overtime pay for sheriff's deputies); Ala. Code § 36-22-16(a) (1991) (sheriff's salary, paid by county, may be *801 increased "by law by general or local act"); § 36-22-3(3) (sheriff must render to county treasurer a periodic written statement of moneys collected by sheriff on behalf of county). Sheriff Tate, in short, is in vital respects a county official. Indeed, one would be hard pressed to think of a single official who more completely represents the exercise of significant power within a county. See Pembaur v. Cincinnati, 746 F.2d 337, 340-341 (CA6 1984) (sheriff elected by residents of county to be county's chief law enforcement officer, paid and equipped by county, is "obvious[ly]" a county official), rev'd on other grounds, 475 U.S. 469 (1986).[2] The Court observes that it is "most importan[t]" to its holding that Alabama sheriffs "are given complete authority to enforce the state criminal law in their counties." See ante, at 790. If the Court means to suggest that Sheriff Tate should be classified as a state actor because he is enforcing state (as opposed to county or municipal) law, the Court proves far too much. Because most criminal laws are of statewide application, relying on whose law the sheriff enforces yields an all-state categorization of sheriffs, despite the Court's recognition that such blanket classification is inappropriate. See ante, at 786. Sheriffs in Arkansas, Texas, and Washington, just like sheriffs in Alabama, enforce *802 the State's law, but that does not make them policymakers for the State rather than the county. See ante, at 795-796, n. 10. In emphasizing that the Monroe County Commission cannot instruct Sheriff Tate how to accomplish his law enforcement mission, see ante, at 790, the Court indirectly endorses the Eleventh Circuit's reasoning: Because under Alabama law a county commission does not possess law enforcement authority, a sheriff's law enforcement activities cannot represent county policy. See McMillian v. Johnson, 88 F.3d 1573, 1578 (CA11 1996). There is an irony in this approach: If a county commission lacks law enforcement authority, then the sheriff becomes a state official; but if a county commission possesses such authority and directs the sheriff's activities, then the sheriff presumably would not be a final policymaker in the realm of law enforcement, see St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion). Moreover, in determining who makes county policy, this Court has never reasoned that all policymaking authority must be vested in a single body that either exercises that power or formally delegates it to another. Few local governments would fit that rigid model. Cf. id., at 124-125 ("The States have extremely wide latitude in determining the form that local government takes . . . . [O]ne may expect to find a rich variety of ways in which the power of government is distributed among a host of different officials and official bodies."). Nor does Monell support such a constricted view of the exercise of municipal authority; there, we spoke of § 1983 liability for acts by "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 436 U.S., at 694 (emphasis added). In this case, Sheriff Tate is "the county's final policymaker in the area of law enforcement, not by virtue of delegation by the county's governing body but, rather, by virtue of the office to which the sheriff has been elected." Turner v. Upton Cty., 915 F.2d 133, 136 (CA5 1990); see also Blackburn v. Snow, 771 F.2d 556, 571 (CA1 1985); accord, Vera v. Tue, 73 *803 F. 3d 604, 609 (CA5 1996) ("[T]he Sheriff, an elected county official [in Texas], had equal authority to the county commissioners in that jurisdiction [so] that his actions constituted those of the county just as much as those of the commissioners."). An Alabama sheriff is a county policymaker because he independently exercises law enforcement authority for the county. In this most crucial respect, the Alabama arrangement resembles the "unique structure of county government" in Texas. See Turner, 915 F. 2d, at 136-137, cited ante, at 796, n. 10. The Court also suggests that because the Governor can direct a sheriff to investigate a violation of law in the county, an Alabama sheriff must be a state, not a county, official. See ante, at 791 (citing Ala. Code § 36-22-5 (1991)). It is worth noting that a group of county citizens can likewise trigger an investigation by the sheriff. See § 36-22-6(b). The respondent, Monroe County, did not inform us whether the Governor directs county sheriffs to conduct investigations with any regularity. More important, there is no suggestion that Sheriff Tate was proceeding under the Governor's direction when Tate pursued the investigation that led to McMillian's Death Row confinement. If Sheriff Tate were acting on instruction from the Governor, this would be a very different case. But the bare possibility that a Governor might sometime direct a sheriff's law enforcement activities does not lessen the sheriff's authority, as the final county policymaker, in the general run of investigations the sheriff undertakes. II The Court's reliance on "the ancient understanding of what it has meant to be a sheriff," ante, at 795, is no more persuasive than its interpretation of Alabama law. This emphasis on the historical understanding of the office of sheriff implies, again, an all-state categorization of sheriffs throughout the Nation; but because the Court expressly disclaims such a "blunderbuss" approach, ibid., that cannot be what *804 this history lesson is intended to convey. In England, it is true, the sheriff did perform "the king's business in the county." 1 W. Blackstone, Commentaries *339. But the English sheriff, as Blackstone described him, was far closer to the crown than his contemporary counterpart is to the central state government. While sheriffs were for a time chosen locally, "[t]his election," according to Blackstone, "was in all probability not absolutely vested in the [inhabitants of the counties], but required the royal approbation." Id., at *340. Eventually, the king chose the sheriff from a list proposed by the judges and other great officers. See id., at *340—*341. Whatever English history may teach, "[t]hroughout U. S. history, the sheriff has remained the principal law enforcement officer in the county." G. Felkenes, The Criminal Justice System: Its Functions and Personnel 53 (1973); see id., at 52-53 (referring specifically to Alabama sheriffs). In the United States, "[i]n order to reserve control over the sheriff's department and its police functions, the people made the sheriff an elective officer." Id., at 53. It is this status as the county's law enforcement officer chosen by the county's residents that is at the root of the contemporary understanding of the sheriff as a county officer. * * * A sheriff locally elected, paid, and equipped, who autonomously sets and implements law enforcement policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official. Nothing in Alabama law warrants a different conclusion. It makes scant sense to treat sheriffs' activities differently based on the presence or absence of state constitutional provisions of the limited kind Alabama has adopted. The Court's Alabama-specific approach, however, assures that today's immediate holding is of limited reach. The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes, such *805 as hiring the county's chief jailor, see Parker v. Williams, 862 F.2d 1471, 1477-1481 (CA11 1989). And, as the Court acknowledges, under its approach sheriffs may be policymakers for certain purposes in some States and not in others. See ante, at 795, and n. 10. The Court's opinion does not call into question the numerous Court of Appeals decisions, some of them decades old, ranking sheriffs as county, not state, policymakers. Furthermore, the Court's recognition of the historic reasons why Alabama listed sheriffs as members of the State's "executive department," see ante, at 788— 789, should discourage endeavors to insulate counties and municipalities from Monell liability by change-the-label devices. Thus, the Court's opinion, while in my view misguided, does little to alter § 1983 county and municipal liability in most jurisdictions.

Petitioner Walter McMillian, convicted of capital murder, spent nearly six years on Alabama's Death Row. In 1993, the Alabama Court of Criminal Appeals determined that government officials, including the Sheriff of Monroe County, had concealed evidence of McMillian's innocence. Based on that evidence, the court overturned the conviction. The State thereafter dismissed all charges against McMillian and released him from prison. *797 Seeking redress for an arrest and years of incarceration in violation of his federal constitutional rights, McMillian commenced the instant action under 42 U.S. C. 1983. He named as defendants both Monroe County and the County's Sheriff, Tom Tate. McMillian alleged that Sheriff Tate withheld exculpatory evidence, generated false, inculpatory evidence, and subjected him to gross racial insults and relentless intimidation. Sheriff Tate, it is uncontested, has "final policymaking authority" under Alabama law over matters of law enforcement in Monroe County. Our precedent instructs that, if the sheriff makes policy for the State, Monroe County would not be accountable, under 1983, for that policy; if, on the other hand, the sheriff acts as law enforcement policymaker for Monroe County, then the county would be answerable under 1983. See Alabama has 67 county sheriffs, each elected, paid, and equipped locally, each with countywide, not statewide, authority. Unlike judges who work within the State's judicial hierarchy, or prosecutors who belong to a prosecutorial corps superintended by the State's Attorney General, sheriffs are not part of a state command and serve under no "State Sheriff General." The Court, nonetheless, holds that the policies set by Sheriff Tate in Monroe County, though discrete from, and uncoordinated with, the policies of sheriffs in other counties, "may fairly be said to represent [Alabama] policy." See I disagree. I In my view, Alabama law defining the office of sheriff indicates that the sheriff acts within and for the county when setting and implementing law enforcement policy.[1] In explaining *798 why it concludes otherwise and deems the sheriff the State's, not the county's, policymaker, the Court leans heavily on provisions of the State's Constitution. The Court relies on the Alabama Constitution's designation of "a sheriff for each county" as a member of the State's "executive department." See Ala. Const., Art. V, 112; ante, at 787. In addition, the Court points to two 1901 amendments relating to the impeachment of sheriffs. See ante, at 788-789. These measures are the strongest supports for the Court's classification of county sheriffs as state actors. They are not sturdy enough, however, to justify the Court's holding that county sheriffs are state officials. Alabama law does not consistently designate sheriffs as "executive department" officers; instead, Alabama law in several instances refers to sheriffs as county officials. See In re Opinions of Justices, ; Ala. Code 36-3—4(a) (sheriff, a "county officer," shall be elected to four-year term); Ala. Code 36-22-16(a) Moreover, designations Alabama attaches to sheriffs in its laws and decisions are not dispositive of a court's assessment of Sheriff Tate's status for 1983 purposes. Cf. Regents of Univ. of ; (defenses to 1983 actions are questions of federal law); (state law granting immunity to parole officers does not control question whether such officers have immunity under 1983). If a State's designation sufficed to answer the federal question at issue, "States would then be *799 free to nullify for their own people the legislative decisions that Congress has made on behalf of all the People." Nor are the 1901 impeachment measures secure indicators that a sheriff acts on behalf of the State, not the county. As the Court explains, the impeachment amendments were intended to provide a state check on county sheriffs in view of their glaring lapses in acquiescing to abductions and lynchings in the late 1800's. See ante, at 788. However, making an officer eligible for impeachment, by itself, does not change the governmental unit to which the officer belongs. See Ala. Const., Art. VII, 175 (listing numerous county officials subject to impeachment); Ala. Code 36-11— 1(a) (same). And transferring impeachment proceedings from county courts to the State Supreme Court, see Ala. Const., Art. VII, 174, is sensibly seen as an acknowledgment of the power wielded by sheriffs within their own counties, and the consequent need for placement of removal authority outside a sheriff's bailiwick. Furthermore, impeachment of sheriffs is not a power reserved exclusively to state officials; "five resident taxpayers" of the sheriff's county can initiate an impeachment. See Ala. Code 36— 11-6 Impeachment, in sum, provides an ultimate check on flagrant behavior, but does not serve as a tight control rein. The prime controllers of a sheriff's service are the county residents, the people who select their sheriff at quadrennial elections. Sheriff Tate owes his position as chief law enforcement officer of Monroe County to the county residents who elected him, and who can unseat him. See Ala. Const., Art. V, 138, as amended by Amdt. No. 35 ("A sheriff shall be elected in each county by the qualified electors thereof."). On the ballot, candidates for the office of sheriff are grouped with candidates for other county offices, and are not listed with state office candidates. See Ala. Code 17-8—5 (1995). *800 Traditionally, Alabama sheriffs have had autonomy to formulate and execute law enforcement policy within the geographic confines of their counties. Under Alabama law, "[i]t shall be the duty of sheriffs in their respective counties to ferret out crime, to apprehend and arrest criminals and. to secure evidence of crimes." Ala. Code 36-22-3(4) ; see also Ala. Code 15-6—1 (1995) ("The sheriff is the principal conservator of the peace in his county, and it is his duty to suppress riots, unlawful assemblies and affrays. In the execution of such duty, he may summon to his aid as many of the men of his county as he thinks proper." ); 15-10-1 (sheriffs may make arrests "within their respective counties"). Monroe County pays Sheriff Tate's salary, see Ala. Code 36-22-16(a) and the sheriff operates out of an office provided, furnished, and equipped by the county, see 36-22-18. The obligation to fully equip the sheriff is substantial, requiring a county commission to "furnish the sheriff with the necessary quarters, books, stationery, office equipment, supplies, postage and other conveniences and equipment, including automobiles and necessary repairs, maintenance and all expenses incidental thereto." These obligations are of practical importance, for they mean that purse strings can be pulled at the county level; a county is obliged to provide a sheriff only what is "reasonably needed for the proper and efficient conduct of the affairs of the sheriff's office," How generously the sheriff will be equipped is likely to influence that officer's day-to-day conduct to a greater extent than the remote prospect of impeachment. See ; see also Geneva Cty. ; Ala. Code 36-22-16(a) ; 36-22-3(3) (sheriff must render to county treasurer a periodic written statement of moneys collected by sheriff on behalf of county). Sheriff Tate, in short, is in vital respects a county official. Indeed, one would be hard pressed to think of a single official who more completely represents the exercise of significant power within a county. See rev'd on other grounds,[2] The Court observes that it is "most importan[t]" to its holding that Alabama sheriffs "are given complete authority to enforce the state criminal law in their counties." See ante, at 790. If the Court means to suggest that Sheriff Tate should be classified as a state actor because he is enforcing state (as opposed to county or municipal) law, the Court proves far too much. Because most criminal laws are of statewide application, relying on whose law the sheriff enforces yields an all-state categorization of sheriffs, despite the Court's recognition that such blanket classification is inappropriate. See ante, at 786. Sheriffs in Arkansas, Texas, and Washington, just like sheriffs in Alabama, enforce *802 the State's law, but that does not make them policymakers for the State rather than the county. See ante, at 795-796, n. 10. In emphasizing that the Monroe County Commission cannot instruct Sheriff Tate how to accomplish his law enforcement mission, see ante, at 790, the Court indirectly endorses the Eleventh Circuit's reasoning: Because under Alabama law a county commission does not possess law enforcement authority, a sheriff's law enforcement activities cannot represent county policy. See There is an irony in this approach: If a county commission lacks law enforcement authority, then the sheriff becomes a state official; but if a county commission possesses such authority and directs the sheriff's activities, then the sheriff presumably would not be a final policymaker in the realm of law enforcement, see St. Moreover, in determining who makes county policy, this Court has never reasoned that all policymaking authority must be vested in a single body that either exercises that power or formally delegates it to another. Few local governments would fit that rigid model. Cf. Nor does Monell support such a constricted view of the exercise of municipal authority; there, we spoke of 1983 liability for acts by "lawmakers or by those whose edicts or acts may fairly be said to represent official policy." 436 U.S., at In this case, Sheriff Tate is "the county's final policymaker in the area of law enforcement, not by virtue of delegation by the county's governing body but, rather, by virtue of the office to which the sheriff has been elected." ; see also ; accord, An Alabama sheriff is a county policymaker because he independently exercises law enforcement authority for the county. In this most crucial respect, the Alabama arrangement resembles the "unique structure of county government" in Texas. See Turner, 915 F. 2d, at -137, cited ante, at 796, n. 10. The Court also suggests that because the Governor can direct a sheriff to investigate a violation of law in the county, an Alabama sheriff must be a state, not a county, official. See ante, at 791 ). It is worth noting that a group of county citizens can likewise trigger an investigation by the sheriff. See 36-22-6(b). The respondent, Monroe County, did not inform us whether the Governor directs county sheriffs to conduct investigations with any regularity. More important, there is no suggestion that Sheriff Tate was proceeding under the Governor's direction when Tate pursued the investigation that led to McMillian's Death Row confinement. If Sheriff Tate were acting on instruction from the Governor, this would be a very different case. But the bare possibility that a Governor might sometime direct a sheriff's law enforcement activities does not lessen the sheriff's authority, as the final county policymaker, in the general run of investigations the sheriff undertakes. II The Court's reliance on "the ancient understanding of what it has meant to be a sheriff," ante, at 795, is no more persuasive than its interpretation of Alabama law. This emphasis on the historical understanding of the office of sheriff implies, again, an all-state categorization of sheriffs throughout the Nation; but because the Court expressly disclaims such a "blunderbuss" approach, that cannot be what *804 this history lesson is intended to convey. In England, it is true, the sheriff did perform "the king's business in the county." 1 W. Blackstone, Commentaries *339. But the English sheriff, as Blackstone described him, was far closer to the crown than his contemporary counterpart is to the central state government. While sheriffs were for a time chosen locally, "[t]his election," according to Blackstone, "was in all probability not absolutely vested in the [inhabitants of the counties], but required the royal approbation." Eventually, the king chose the sheriff from a list proposed by the judges and other great officers. See —*341. Whatever English history may teach, "[t]hroughout U. S. history, the sheriff has remained the principal law enforcement officer in the county." G. Felkenes, The Criminal Justice System: Its Functions and Personnel 53 (1973); see In the United States, "[i]n order to reserve control over the sheriff's department and its police functions, the people made the sheriff an elective officer." It is this status as the county's law enforcement officer chosen by the county's residents that is at the root of the contemporary understanding of the sheriff as a county officer. * * * A sheriff locally elected, paid, and equipped, who autonomously sets and implements law enforcement policies operative within the geographic confines of a county, is ordinarily just what he seems to be: a county official. Nothing in Alabama law warrants a different conclusion. It makes scant sense to treat sheriffs' activities differently based on the presence or absence of state constitutional provisions of the limited kind Alabama has adopted. The Court's Alabama-specific approach, however, assures that today's immediate holding is of limited reach. The Court does not appear to question that an Alabama sheriff may still be a county policymaker for some purposes, such *805 as hiring the county's chief jailor, see And, as the Court acknowledges, under its approach sheriffs may be policymakers for certain purposes in some States and not in others. See ante, at 795, and n. 10. The Court's opinion does not call into question the numerous Court of Appeals decisions, some of them decades old, ranking sheriffs as county, not state, policymakers. Furthermore, the Court's recognition of the historic reasons why Alabama listed sheriffs as members of the State's "executive department," see ante, at 788— 789, should discourage endeavors to insulate counties and municipalities from Monell liability by change-the-label devices. Thus, the Court's opinion, while in my view misguided, does little to alter 1983 county and municipal liability in most jurisdictions.

Justice Breyer

majority

Dahda v. United States

2018-05-14

https://www.courtlistener.com/opinion/4497657/dahda-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/4497657/

2017-050

A federal statute allows judges to issue wiretap orders authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. See Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. C. §2510 et seq. The statute requires the judge to find “probable cause” supporting issuance of the order, and it sets forth other detailed requirements governing both the application for a wiretap and the judicial order that authorizes it. See §2518. The statute provides for the suppression of “the contents of any wire or oral communication” that a wiretap “inter- cept[s]” along with any “evidence derived therefrom” if “(i) the communication was unlawfully intercepted; “(ii) the order of . . . approval under which it was in- tercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” §2518(10)(a). 2 DAHDA v. UNITED STATES Opinion of the Court This litigation concerns the second of these provisions— the provision that governs the “insufficien[cy]” of an order “on its face.” §2518(10)(a)(ii). Los and Roosevelt Dahda—defendants in the trial below and petitioners here—sought to suppress evidence derived from nine wiretap Orders used to obtain evidence of their participation in an unlawful drug distribution conspiracy. They argue that each Order is “insufficient on its face” because each contains a sentence authorizing interception “outside the territorial jurisdiction” of the authorizing judge, App. 97 (emphasis added), even though the statute normally allows a judge to authorize wiretaps only within his or her “territorial jurisdiction,” §2518(3). In deciding whether each Order was “insufficient on its face,” we assume that the Dahdas are right about the “territorial” requirement. That is to say, we assume the relevant sentence exceeded the judge’s statutory author- ity. But none of the communications unlawfully inter- cepted outside the judge’s territorial jurisdiction were intro- duced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas. Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not “insufficient” on their “face.” I A As we just said, the relevant statute permits a judge to issue an order authorizing the Government to intercept wire communications for an initial (but extendable) period of 30 days. §2518(5). To obtain that order, the Govern- ment must submit an application that describes the par- ticular offense being investigated as well as the type of communications it seeks to intercept; that sets forth the basis for an appropriate finding of “probable cause”; that explains why other less intrusive methods are inadequate, Cite as: 584 U. S. ____ (2018) 3 Opinion of the Court have failed, or are too dangerous to try; and that meets other requirements, showing, for example, authorization by a specified governmental official. §2518(1). If the judge accepts the application, finds probable cause, and issues an authorizing order, that order must itself contain speci- fied information, including, for example, the identity of the “person” whose “communications are to be intercepted”; the “nature and location of the [relevant] communications facilities”; a “particular description of the type of commu- nication sought to be intercepted”; a statement of the “particular offense” to which the intercept “relates”; the “identity of the agency authorized to intercept”; the iden- tity of the “person authorizing the application”; and “the period of time during which” the “interception is author- ized.” §§2518(4)(a)–(e). A judge’s authorizing authority normally extends only within statutorily defined bounds. The statute specifies that an order can permit the interception of communica- tions “within the territorial jurisdiction of the court in which the judge is sitting.” §2518(3). (There is an excep- tion allowing interception beyond the judge’s territorial jurisdiction if the judge authorizes a “mobile interception device,” ibid., but the parties now agree that exception does not apply to these Orders.) The Government here adds (without the Dahdas’ disagreement) that an intercept takes place either where the tapped telephone is located or where the Government’s “listening post” is located. See §2510(4) (defining “intercept” as “the aural or other acqui- sition of the contents of any wire, electronic, or oral com- munication through the use of any electronic, mechanical, or other device”); see also Brief for Petitioners 11; Brief for United States 6. As so interpreted, the statute generally requires that one or the other or both of these locations must be found within the authorizing judge’s “territorial jurisdiction.” 4 DAHDA v. UNITED STATES Opinion of the Court B In 2011, the Government began investigating a sus- pected drug distribution ring based in Kansas. It submitted an application asking a federal judge for the District of Kansas to issue nine related wiretap Orders, and the judge issued them. For present purposes we assume, see infra, at 10–11, that all nine Orders met all statutory requirements with one exception. Each Order contained a sentence that read as follows: “Pursuant to Title 18, United States Code §2518(3), it is further Ordered that, in the event TARGET TELEPHONE #1, TARGET TELEPHONE #3 and TARGET TELEPHONE #4, are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States.” App. 105 (under seal) (emphasis added); see also id., at 97, 114, 123, 132, 140, 149, 158, 166, 174 (Orders containing identical language but targeting different telephones). Although they disputed it below, the parties now agree that this sentence could not lawfully allow a wiretap of a phone that was located outside Kansas in instances where the Government’s listening post was also located outside of Kansas. Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on mobile phones that were located outside of Kansas. But, in one instance, the Government listened from a listening post outside of Kansas (in Missouri) to conversa- tions on a mobile phone that was also outside of Kansas (in California). That one instance concerned a mobile phone (Target Telephone #7) belonging to Philip Alarcon. In 2012, the Government indicted the Dahdas and several others, charging them with conspiracy to buy Cite as: 584 U. S. ____ (2018) 5 Opinion of the Court illegal drugs in California and sell them in Kansas. Prior to trial, the Dahdas moved to suppress all evidence de- rived from the wiretaps authorized by the nine Orders on the ground that the District Court could not authorize the interception of calls from the Missouri listening post to and from Alarcon’s mobile phone in California. In its response, the Government said it would not introduce any evidence arising from its Missouri listening post. A Mag- istrate Judge and subsequently the District Court denied the Dahdas’ suppression motion. App. to Pet. for Cert. 59a–76a. The Dahdas appealed. They argued that, even though the Government did not use any wiretap information from the Missouri listening post, the court should have sup- pressed all evidence derived from any of the Orders. That, they said, is because each Order was “insufficient on its face” given the extra sentence authorizing interception outside Kansas. Hence the second subparagraph of the statute’s suppression provision required the evidence to be suppressed. §2518(10)(a)(ii). The U. S. Court of Appeals for the Tenth Circuit rejected this argument on the ground that the claimed insuffi- ciency concerned the statute’s territorial requirement. 853 F.3d 1101, 1114–1116 (2017). That requirement, in its view, did not “ ‘implemen[t]’ ” Congress’ core statutory concerns in enacting the wiretap statute. Id., at 1114 (quoting United States v. Giordano, 416 U.S. 505, 527 (1974)). And for that reason a violation of the territorial requirement did not warrant suppression. See also 852 F.3d 1282, 1290 (2017). The Dahdas filed a petition for certiorari, seeking review of the Tenth Circuit’s determination. And, in light of different related holdings among the Circuits, we granted that petition. Compare 853 F.3d, at 1114–1116 (suppres- sion was not required for orders authorizing suppression beyond the District Court’s territorial jurisdiction), and 6 DAHDA v. UNITED STATES Opinion of the Court Adams v. Lankford, 788 F.2d 1493, 1500 (CA11 1986) (same), with United States v. Glover, 736 F.3d 509, 515 (CADC 2013) (suppression required for territorial defect). II A The question before us concerns the interpretation of the suppression provision’s second subparagraph, which requires suppression where a wiretap order is “insufficient on its face.” §2518(10)(a)(ii). The Dahdas ask us to read subparagraph (ii) as applying to any legal defect that appears within the four corners of the order. The Gov- ernment replies that the Dahdas’ approach would require suppression of evidence of serious criminal behavior due to the most minor of technical failures, including those that have little or no relation to any statutory objective. The Tenth Circuit, agreeing with the Government, held that subparagraph (ii) applies only where the “insuffi- ciency” constitutes an order’s failure to satisfy a “ ‘statutory requiremen[t] that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the em- ployment of this extraordinary investigative device.’ ” 853 F.3d, at 1114 (quoting Giordano, supra, at 527; second alteration in original). The court identified two such core concerns—“ ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the inter- ception of wire and oral communications may be author- ized’ ”—and concluded that neither applies to the statute’s territorial limitation. 853 F.3d, at 1114 (quoting S. Rep. No. 90–1097, p. 66 (1986)). Like the Dahdas, we believe that the Tenth Circuit’s interpretation of this provision is too narrow. The Tenth Circuit took the test it applied from this Court’s decision in United States v. Giordano, supra, at 527. But Giordano Cite as: 584 U. S. ____ (2018) 7 Opinion of the Court involved a different provision. Keep in mind that the statute sets forth three grounds for suppression: “(i) the communication was unlawfully intercepted; “(ii) the order of . . . approval under which it was in- tercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” §2518(10)(a). Giordano focused not, as here, on the second subpara- graph but on the first subparagraph, which calls for the suppression of “unlawfully intercepted” communications. In Giordano, a criminal defendant sought suppression of wiretap-gathered information on the ground that the wiretap application was unlawfully authorized. 416 U.S., at 525. A provision of the wiretap statute that has since been amended required an application to be approved by either the Attorney General or a designated Assistant Attorney General. See 18 U.S. C. §2516(1) (1970 ed.). But, in Giordano’s case, an executive assistant to the Assistant Attorney General—not the Assistant Attorney General himself—had approved the application. 416 U.S., at 510. The Government argued that this statutory violation did not violate the first subparagraph, i.e., it did not lead to an “unlawfu[l] intercept[ion],” 18 U.S. C. §2518(10)(a)(i), because that subparagraph covers only violations of the Constitution, not statutes. Giordano, 416 U.S., at 525– 526. Otherwise, the Government added, subparagraphs (ii) and (iii)—which clearly cover some statutory viola- tions—would be superfluous. Id., at 526. But this Court held that the first subparagraph did cover certain statu- tory violations, namely, violations of those statutory provi- sions that “implemented” the wiretap-related congres- sional concerns the Tenth Circuit mentioned in its opinion. Id., at 527. So construed, the suppression provision left 8 DAHDA v. UNITED STATES Opinion of the Court room for the second and third subparagraphs to have separate legal force. The Court went on to hold that a violation of the approval-by-the-Attorney-General provi- sion implicated Congress’ core concerns. Subparagraph (i) thus covered that particular statutory provision. And, finding the provision violated, it ordered the wiretap evidence suppressed. Id., at 527–528. Here, by contrast, we focus upon subparagraph (ii), which requires suppression when an order is facially insufficient. And in respect to this subparagraph, we can find no good reason for applying Giordano’s test. The underlying point of Giordano’s limitation was to help give independent meaning to each of §2518(10)(a)’s subpara- graphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’— precisely what [this] Court tried to avoid in Giordano.” Glover, 736 F.3d, at 514. We consequently conclude that subparagraph (ii) does not contain a Giordano-like “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.” §2518(10)(a)(ii). B Although we believe the Tenth Circuit erred in applying Giordano’s core concerns test to subparagraph (ii), we cannot fully endorse the Dahdas’ reading of the statute either. In our view, subparagraph (ii) does not cover each and every error that appears in an otherwise sufficient order. It is clear that subparagraph (ii) covers at least an order’s failure to include information that §2518(4) specifi- cally requires the order to contain. See §§2518(4)(a)–(e) (requiring an order to specify, e.g., the “identity of the person, if known, whose communications are to be inter- cepted,” “a particular description of the type of communi- cation sought to be intercepted, and a statement of the Cite as: 584 U. S. ____ (2018) 9 Opinion of the Court particular offense to which it relates”); Brief for United States 17. An order lacking that information would devi- ate from the uniform authorizing requirements that Con- gress explicitly set forth, while also falling literally within the phrase “insufficient on its face.” But the Dahdas would have us go further and conclude that any defect that may appear on an order’s face would render it insufficient. The lower courts in various contexts have debated just which kinds of defects subparagraph (ii) covers. See, e.g., United States v. Moore, 41 F.3d 370, 375–376 (CA8 1994) (order missing judge’s signature); United States v. Joseph, 519 F.2d 1068, 1070 (CA5 1975) (order identifying the wrong Government official as au- thorizing the application); United States v. Vigi, 515 F.2d 290, 293 (CA6 1975) (same). We need not, however, re- solve the questions that these many different cases raise. We need only determine whether the defects in the Orders before us render them “insufficient.” We conclude that they do not. We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” Murr v. Wis- consin, 582 U. S. ___, ___ (2017) (slip op., at 19), we see little to be gained by remanding this litigation for further consideration. The argument is simply this: Subparagraph (ii) refers to an order that is “insufficient on its face.” An order is “insufficient” insofar as it is “deficient” or “lacking in what is necessary or requisite.” 5 Oxford English Dictionary 359 (1933); accord, Webster’s New International Diction- ary 1288 (2d ed. 1957). And, looking, as the Dahdas urge 10 DAHDA v. UNITED STATES Opinion of the Court us to do, at “the four corners of the order itself,” Reply Brief 4, we cannot find any respect in which the Orders are deficient or lacking in anything necessary or requisite. The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas, which we set forth above. See supra, at 4. But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “out- side the territorial jurisdiction of the court.” App. 97. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its pres- ence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we dis- cussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. See supra, at 3. Consequently, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute. The Dahdas argue that, without the offending sentence, the Orders are “insufficient” because they then do not specifically list the territorial area where they could law- fully take effect. Reply Brief 6. The Orders, however, clearly set forth the authorizing judge’s territorial jurisdic- tion: the “District of Kansas.” See App. 100. And the statute itself presumptively limits every Order’s scope to the issuing court’s territorial jurisdiction. See §2518(3). We consequently fail to see how the additional language here at issue could render the Orders facially insufficient. The Dahdas add that interpreting the term “insuffi- cient” as we have just done will produce “bizarre results.” Reply Brief 5. They claim that, under the Government’s Cite as: 584 U. S. ____ (2018) 11 Opinion of the Court logic, an order authorizing interception for 180 days would not be facially insufficient even though the wiretap statute expressly limits the maximum duration of a wiretap order to 30 days. §2518(5). To be sure, a 180-day order may raise problems that the language at issue here does not. On the one hand, it may be argued that such an order would be facially insufficient because without the 180-day provision the order would not contain any time limit at all. See §2518(4)(e). On the other hand, one might argue that such an order merely would be overly broad—not facially insufficient—and that suppression would be warranted only for those communications unlawfully intercepted after 30 days. See §2518(10)(a)(i). Regardless, we need not now address the Dahdas’ 180- day hypothetical. It is enough to say that the problems that may be associated with such an order are not present in this litigation. Here, the Orders would have been suffi- cient even if they lacked the language authorizing inter- ception outside Kansas. And the Dahdas cannot seek suppression under subparagraph (i) given that the unlaw- fully intercepted communications from the Missouri listen- ing post were not introduced at trial. Our interpretation of subparagraph (ii) makes sense of the suppression provision as a whole. Where the Govern- ment’s use of a wiretap is unconstitutional or violates a statutory provision that reflects Congress’ core concerns, an aggrieved person may suppress improperly acquired evidence under subparagraph (i) (as “unlawfully inter- cepted,” see Giordano, 416 U.S., at 527). Where an order lacks information that the wiretap statute requires it to include, an aggrieved person may suppress the fruits of the order under subparagraph (ii) (as “insufficient on its face”). And where the Government fails to comply with conditions set forth in the authorizing order, an aggrieved person may suppress its fruits under subparagraph (iii) (as an “interception . . . not made in conformity with the 12 DAHDA v. UNITED STATES Opinion of the Court order of authorization or approval”). For these reasons, the judgments of the Court of Ap- peals are affirmed. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of these cases

A federal statute allows judges to issue wiretap orders authorizing the interception of communications to help prevent, detect, or prosecute serious federal crimes. See Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. C. et seq. The statute requires the judge to find “probable cause” supporting issuance of the order, and it sets forth other detailed requirements governing both the application for a wiretap and the judicial order that authorizes it. See The statute provides for the suppression of “the contents of any wire or oral communication” that a wiretap “inter- cept[s]” along with any “evidence derived therefrom” if “(i) the communication was unlawfully intercepted; “(ii) the order of approval under which it was in- tercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” 2 DAHDA v. UNITED STATES Opinion of the Court This litigation concerns the second of these provisions— the provision that governs the “insufficien[cy]” of an order “on its face.” Los and Roosevelt Dahda—defendants in the trial below and petitioners here—sought to suppress evidence derived from nine wiretap Orders used to obtain evidence of their participation in an unlawful drug distribution conspiracy. They argue that each Order is “insufficient on its face” because each contains a sentence authorizing interception “outside the territorial jurisdiction” of the authorizing judge, App. 97 (emphasis added), even though the statute normally allows a judge to authorize wiretaps only within his or her “territorial jurisdiction,” In deciding whether each Order was “insufficient on its face,” we assume that the Dahdas are right about the “territorial” requirement. That is to say, we assume the relevant sentence exceeded the judge’s statutory author- ity. But none of the communications unlawfully inter- cepted outside the judge’s territorial jurisdiction were intro- duced at trial, so the inclusion of the extra sentence had no significant adverse effect upon the Dahdas. Because the remainder of each Order was itself legally sufficient, we conclude that the Orders were not “insufficient” on their “face.” I A As we just said, the relevant statute permits a judge to issue an order authorizing the Government to intercept wire communications for an initial (but extendable) period of 30 days. To obtain that order, the Govern- ment must submit an application that describes the par- ticular offense being investigated as well as the type of communications it seeks to intercept; that sets forth the basis for an appropriate finding of “probable cause”; that explains why other less intrusive methods are inadequate, Cite as: 584 U. S. (2018) 3 Opinion of the Court have failed, or are too dangerous to try; and that meets other requirements, showing, for example, authorization by a specified governmental official. If the judge accepts the application, finds probable cause, and issues an authorizing order, that order must itself contain speci- fied information, including, for example, the identity of the “person” whose “communications are to be intercepted”; the “nature and location of the [relevant] communications facilities”; a “particular description of the type of commu- nication sought to be intercepted”; a statement of the “particular offense” to which the intercept “relates”; the “identity of the agency authorized to intercept”; the iden- tity of the “person authorizing the application”; and “the period of time during which” the “interception is author- ized.” A judge’s authorizing authority normally extends only within statutorily defined bounds. The statute specifies that an order can permit the interception of communica- tions “within the territorial jurisdiction of the court in which the judge is sitting.” (There is an excep- tion allowing interception beyond the judge’s territorial jurisdiction if the judge authorizes a “mobile interception device,” ib but the parties now agree that exception does not apply to these Orders.) The Government here adds (without the Dahdas’ disagreement) that an intercept takes place either where the tapped telephone is located or where the Government’s “listening post” is located. See (4) (defining “intercept” as “the aural or other acqui- sition of the contents of any wire, electronic, or oral com- munication through the use of any electronic, mechanical, or other device”); see also Brief for Petitioners 11; Brief for United States 6. As so interpreted, the statute generally requires that one or the other or both of these locations must be found within the authorizing judge’s “territorial jurisdiction.” 4 DAHDA v. UNITED STATES Opinion of the Court B In 2011, the Government began investigating a sus- pected drug distribution ring based in Kansas. It submitted an application asking a federal judge for the District of Kansas to issue nine related wiretap Orders, and the judge issued them. For present purposes we assume, see infra, at 10–11, that all nine Orders met all statutory requirements with one exception. Each Order contained a sentence that read as follows: “Pursuant to Title 18, United States Code it is further Ordered that, in the event TARGET TELEPHONE #1, TARGET TELEPHONE #3 and TARGET TELEPHONE #4, are transported outside the territorial jurisdiction of the court, interception may take place in any other jurisdiction within the United States.” App. 105 (under seal) (emphasis added); see also 166, 174 (Orders containing identical language but targeting different telephones). Although they disputed it below, the parties now agree that this sentence could not lawfully allow a wiretap of a phone that was located outside Kansas in instances where the Government’s listening post was also located outside of Kansas. Pursuant to these Orders, the Government listened from a listening post within Kansas to conversations on mobile phones that were located within Kansas and conversations on mobile phones that were located outside of Kansas. But, in one instance, the Government listened from a listening post outside of Kansas (in Missouri) to conversa- tions on a mobile phone that was also outside of Kansas (in California). That one instance concerned a mobile phone (Target Telephone #7) belonging to Philip Alarcon. In 2012, the Government indicted the Dahdas and several others, charging them with conspiracy to buy Cite as: 584 U. S. (2018) 5 Opinion of the Court illegal drugs in California and sell them in Kansas. Prior to trial, the Dahdas moved to suppress all evidence de- rived from the wiretaps authorized by the nine Orders on the ground that the District Court could not authorize the interception of calls from the Missouri listening post to and from Alarcon’s mobile phone in California. In its response, the Government said it would not introduce any evidence arising from its Missouri listening post. A Mag- istrate Judge and subsequently the District Court denied the Dahdas’ suppression motion. App. to Pet. for Cert. 59a–76a. The Dahdas appealed. They argued that, even though the Government did not use any wiretap information from the Missouri listening post, the court should have sup- pressed all evidence derived from any of the Orders. That, they said, is because each Order was “insufficient on its face” given the extra sentence authorizing interception outside Kansas. Hence the second subparagraph of the statute’s suppression provision required the evidence to be suppressed. The U. S. Court of Appeals for the Tenth Circuit rejected this argument on the ground that the claimed insuffi- ciency concerned the statute’s territorial requirement. 853 F.3d 1101, 1114–1116 (2017). That requirement, in its view, did not “ ‘implemen[t]’ ” Congress’ core statutory concerns in enacting the wiretap statute. (quoting United (1974)). And for that reason a violation of the territorial requirement did not warrant suppression. See also 852 F.3d 1282, 1290 (2017). The Dahdas filed a petition for certiorari, seeking review of the Tenth Circuit’s determination. And, in light of different related holdings among the Circuits, we granted that petition. 853 F.3d, –1116 (suppres- sion was not required for orders authorizing suppression beyond the District Court’s territorial jurisdiction), and 6 DAHDA v. UNITED STATES Opinion of the Court (same), with United (CADC 2013) (suppression required for territorial defect). II A The question before us concerns the interpretation of the suppression provision’s second subparagraph, which requires suppression where a wiretap order is “insufficient on its face.” The Dahdas ask us to read subparagraph (ii) as applying to any legal defect that appears within the four corners of the order. The Gov- ernment replies that the Dahdas’ approach would require suppression of evidence of serious criminal behavior due to the most minor of technical failures, including those that have little or no relation to any statutory objective. The Tenth Circuit, agreeing with the Government, held that subparagraph (ii) applies only where the “insuffi- ciency” constitutes an order’s failure to satisfy a “ ‘statutory requiremen[t] that directly and substantially implement[s] the congressional intention to limit the use of intercept procedures to those situations clearly calling for the em- ployment of this extraordinary investigative device.’ ” 853 F.3d, (quoting at ; second alteration in original). The court identified two such core concerns—“ ‘(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the inter- ception of wire and oral communications may be author- ized’ ”—and concluded that neither applies to the statute’s territorial 853 F.3d, ). Like the Dahdas, we believe that the Tenth Circuit’s interpretation of this provision is too narrow. The Tenth Circuit took the test it applied from this Court’s decision in United at But Cite as: 584 U. S. (2018) 7 Opinion of the Court involved a different provision. Keep in mind that the statute sets forth three grounds for suppression: “(i) the communication was unlawfully intercepted; “(ii) the order of approval under which it was in- tercepted is insufficient on its face; or “(iii) the interception was not made in conformity with the order of authorization or approval.” focused not, as here, on the second subpara- graph but on the first subparagraph, which calls for the suppression of “unlawfully intercepted” communications. In a criminal defendant sought suppression of wiretap-gathered information on the ground that the wiretap application was unlawfully authorized. 416 U.S., at 525. A provision of the wiretap statute that has since been amended required an application to be approved by either the Attorney General or a designated Assistant Attorney General. See 18 U.S. C. (1970 ed.). But, in ’s case, an executive assistant to the Assistant Attorney General—not the Assistant Attorney General himself—had approved the application. 416 U.S., at 510. The Government argued that this statutory violation did not violate the first subparagraph, i.e., it did not lead to an “unlawfu[l] intercept[ion],” 18 U.S. C. because that subparagraph covers only violations of the Constitution, not statutes. – 526. Otherwise, the Government added, subparagraphs (ii) and (iii)—which clearly cover some statutory viola- tions—would be superfluous. But this Court held that the first subparagraph did cover certain statu- tory violations, namely, violations of those statutory provi- sions that “implemented” the wiretap-related congres- sional concerns the Tenth Circuit mentioned in its opinion. at So construed, the suppression provision left 8 DAHDA v. UNITED STATES Opinion of the Court room for the second and third subparagraphs to have separate legal force. The Court went on to hold that a violation of the approval-by-the-Attorney-General provi- sion implicated Congress’ core concerns. Subparagraph (i) thus covered that particular statutory provision. And, finding the provision violated, it ordered the wiretap evidence suppressed. at –528. Here, by contrast, we focus upon subparagraph (ii), which requires suppression when an order is facially insufficient. And in respect to this subparagraph, we can find no good reason for applying ’s test. The underlying point of ’s limitation was to help give independent meaning to each of subpara- graphs. It thus makes little sense to extend the core concerns test to subparagraph (ii) as well. Doing so would “actually treat that subparagraph as ‘surplusage’— precisely what [this] Court tried to avoid in” We consequently conclude that subparagraph (ii) does not contain a -like “core concerns” requirement. The statute means what it says. That is to say, subparagraph (ii) applies where an order is “insufficient on its face.” B Although we believe the Tenth Circuit erred in applying ’s core concerns test to subparagraph (ii), we cannot fully endorse the Dahdas’ reading of the statute either. In our view, subparagraph (ii) does not cover each and every error that appears in an otherwise sufficient order. It is clear that subparagraph (ii) covers at least an order’s failure to include information that specifi- cally requires the order to contain. See §(a)–(e) (requiring an order to specify, e.g., the “identity of the person, if known, whose communications are to be inter- cepted,” “a particular description of the type of communi- cation sought to be intercepted, and a statement of the Cite as: 584 U. S. (2018) 9 Opinion of the Court particular offense to which it relates”); Brief for United States 17. An order lacking that information would devi- ate from the uniform authorizing requirements that Con- gress explicitly set forth, while also falling literally within the phrase “insufficient on its face.” But the Dahdas would have us go further and conclude that any defect that may appear on an order’s face would render it insufficient. The lower courts in various contexts have debated just which kinds of defects subparagraph (ii) covers. See, e.g., United 375–376 (CA8 1994) (order missing judge’s signature); United (order identifying the wrong Government official as au- thorizing the application); United States v. Vigi, F.2d 290, 293 (same). We need not, however, re- solve the questions that these many different cases raise. We need only determine whether the defects in the Orders before us render them “insufficient.” We conclude that they do not. We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” Murr v. Wis- consin, 582 U. S. (2017) (slip op., at 19), we see little to be gained by remanding this litigation for further consideration. The argument is simply this: Subparagraph (ii) refers to an order that is “insufficient on its face.” An order is “insufficient” insofar as it is “deficient” or “lacking in what is necessary or requisite.” 5 Oxford English Dictionary 359 (1933); accord, Webster’s New International Diction- ary 1288 (2d ed. 1957). And, looking, as the Dahdas urge 10 DAHDA v. UNITED STATES Opinion of the Court us to do, at “the four corners of the order itself,” Reply Brief 4, we cannot find any respect in which the Orders are deficient or lacking in anything necessary or requisite. The Orders do contain a defect, namely, the sentence authorizing interception outside Kansas, which we set forth above. See But not every defect results in an insufficiency. In that sentence, the District Court “further” ordered that interception may take place “out- side the territorial jurisdiction of the court.” App. 97. The sentence is without legal effect because, as the parties agree, the Orders could not legally authorize a wiretap outside the District Court’s “territorial jurisdiction.” But, more importantly, the sentence itself is surplus. Its pres- ence is not connected to any other relevant part of the Orders. Were we to remove the sentence from the Orders, they would then properly authorize wiretaps within the authorizing court’s territorial jurisdiction. As we dis- cussed above, a listening post within the court’s territorial jurisdiction could lawfully intercept communications made to or from telephones located within Kansas or outside Kansas. See Consequently, every wiretap that produced evidence introduced at the Dahdas’ trial was properly authorized under the statute. The Dahdas argue that, without the offending sentence, the Orders are “insufficient” because they then do not specifically list the territorial area where they could law- fully take effect. Reply Brief 6. The Orders, however, clearly set forth the authorizing judge’s territorial jurisdic- tion: the “District of Kansas.” See App. 100. And the statute itself presumptively limits every Order’s scope to the issuing court’s territorial jurisdiction. See We consequently fail to see how the additional language here at issue could render the Orders facially insufficient. The Dahdas add that interpreting the term “insuffi- cient” as we have just done will produce “bizarre results.” Reply Brief 5. They claim that, under the Government’s Cite as: 584 U. S. (2018) 11 Opinion of the Court logic, an order authorizing interception for 180 days would not be facially insufficient even though the wiretap statute expressly limits the maximum duration of a wiretap order to 30 days. To be sure, a 180-day order may raise problems that the language at issue here does not. On the one hand, it may be argued that such an order would be facially insufficient because without the 180-day provision the order would not contain any time limit at all. See (e). On the other hand, one might argue that such an order merely would be overly broad—not facially insufficient—and that suppression would be warranted only for those communications unlawfully intercepted after 30 days. See Regardless, we need not now address the Dahdas’ 180- day hypothetical. It is enough to say that the problems that may be associated with such an order are not present in this litigation. Here, the Orders would have been suffi- cient even if they lacked the language authorizing inter- ception outside Kansas. And the Dahdas cannot seek suppression under subparagraph (i) given that the unlaw- fully intercepted communications from the Missouri listen- ing post were not introduced at trial. Our interpretation of subparagraph (ii) makes sense of the suppression provision as a whole. Where the Govern- ment’s use of a wiretap is unconstitutional or violates a statutory provision that reflects Congress’ core concerns, an aggrieved person may suppress improperly acquired evidence under subparagraph (i) (as “unlawfully inter- cepted,” see 416 U.S., at ). Where an order lacks information that the wiretap statute requires it to include, an aggrieved person may suppress the fruits of the order under subparagraph (ii) (as “insufficient on its face”). And where the Government fails to comply with conditions set forth in the authorizing order, an aggrieved person may suppress its fruits under subparagraph (iii) (as an “interception not made in conformity with the 12 DAHDA v. UNITED STATES Opinion of the Court order of authorization or approval”). For these reasons, the judgments of the Court of Ap- peals are affirmed. It is so ordered. JUSTICE GORSUCH took no part in the consideration or decision of these cases

Justice Sotomayor

majority

North Carolina Dept. of Revenue v. Kimberley Rice Kaestner 1992 Family Trust

2019-06-21

https://www.courtlistener.com/opinion/4631842/north-carolina-dept-of-revenue-v-kimberley-rice-kaestner-1992-family/

https://www.courtlistener.com/api/rest/v3/clusters/4631842/

2018-071

This case is about the limits of a State’s power to tax a trust. North Carolina imposes a tax on any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2 (2017). The North Caro- lina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust’s benefi- ciaries live in the State, even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State’s tax violates the Due Process Clause of the Fourteenth Amendment. 2 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court I A In its simplest form, a trust is created when one person (a “settlor” or “grantor”) transfers property to a third party (a “trustee”) to administer for the benefit of another (a “beneficiary”). A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees §1, pp. 8–10 (3d ed. 2007). As tradi- tionally understood, the arrangement that results is not a “distinct legal entity, but a ‘fiduciary relationship’ between multiple people.” Americold Realty Trust v. ConAgra Foods, Inc., 577 U. S. ___, ___ (2016) (slip op., at 5). The trust comprises the separate interests of the beneficiary, who has an “equitable interest” in the trust property, and the trustee, who has a “legal interest” in that property. Greenough v. Tax Assessors of Newport, 331 U.S. 486, 494 (1947). In some contexts, however, trusts can be treated as if the trust itself has “a separate existence” from its constituent parts. Id., at 493.1 The trust that challenges North Carolina’s tax had its first incarnation nearly 30 years ago, when New Yorker Joseph Lee Rice III formed a trust for the benefit of his children. Rice decided that the trust would be governed by the law of his home State, New York, and he appointed a fellow New York resident as the trustee.2 The trust agreement provided that the trustee would have “absolute discretion” to distribute the trust’s assets to the beneficiar- ies “in such amounts and proportions” as the trustee might “from time to time” decide. Art. I, §1.2(a), App. 46– 47. When Rice created the trust, no trust beneficiary lived —————— 1 Most notably, trusts are treated as distinct entities for federal taxa- tion purposes. Greenough, 331 U.S., at 493; see Anderson v. Wilson, 289 U.S. 20, 26–27 (1933). 2 This trustee later was succeeded by a new trustee who was a Con- necticut resident during the relevant time period. Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court in North Carolina. That changed in 1997, when Rice’s daughter, Kimberley Rice Kaestner, moved to the State. She and her minor children were residents of North Caro- lina from 2005 through 2008, the time period relevant for this case. A few years after Kaestner moved to North Carolina, the trustee divided Rice’s initial trust into three subtrusts. One of these subtrusts—the Kimberley Rice Kaestner 1992 Family Trust (Kaestner Trust or Trust)—was formed for the benefit of Kaestner and her three children. The same agreement that controlled the original trust also governed the Kaestner Trust. Critically, this meant that the trustee had exclusive control over the allocation and timing of trust distributions. North Carolina explained in the state-court proceedings that the State’s only connection to the Trust in the rele- vant tax years was the in-state residence of the Trust’s beneficiaries. App. to Pet. for Cert. 54a. From 2005 through 2008, the trustee chose not to distribute any of the income that the Trust accumulated to Kaestner or her children, and the trustee’s contacts with Kaestner were “infrequent.”3 371 N. C. 133, 143, 814 S.E.2d 43, 50 (2018). The Trust was subject to New York law, Art. X, App. 69, the grantor was a New York resident, App. 44, and no trustee lived in North Carolina, 371 N. C., at 134, 814 S.E.2d, at 45. The trustee kept the Trust documents and records in New York, and the Trust asset custodians were located in Massachusetts. Ibid. The Trust also maintained no physical presence in North Carolina, made no direct investments in the State, and held no real prop- erty there. App. to Pet. for Cert. 52a–53a. —————— 3 The state court identified only two meetings between Kaestner and the trustee in those years, both of which took place in New York. 371 N. C. 133, 143, 814 S.E.2d 43, 50 (2018). The trustee also gave Kaestner accountings of trust assets and legal advice concerning the Trust. Id., at 135, 814 S. E. 2d, at 45. 4 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court The Trust agreement provided that the Kaestner Trust would terminate when Kaestner turned 40, after the time period relevant here. After consulting with Kaestner and in accordance with her wishes, however, the trustee rolled over the assets into a new trust instead of distributing them to her. This transfer took place after the relevant tax years. See N. Y. Est., Powers & Trusts Law Ann. §10– 6.6(b) (West 2002) (authorizing this action). B North Carolina taxes any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. §105–160.2. The North Carolina Supreme Court interprets the statute to authorize North Carolina to tax a trust on the sole basis that the trust beneficiaries reside in the State. 371 N. C., at 143–144, 814 S.E.2d, at 51. Applying this statute, the North Carolina Department of Revenue assessed a tax on the full proceeds that the Kaestner Trust accumulated for tax years 2005 through 2008 and required the trustee to pay it. See N. C. Gen. Stat. Ann. §105–160.2. The resulting tax bill amounted to more than $1.3 million. The trustee paid the tax under protest and then sued in state court, arguing that the tax as applied to the Kaestner Trust violates the Due Process Clause of the Fourteenth Amendment. The trial court decided that the Kaestners’ residence in North Carolina was too tenuous a link between the State and the Trust to support the tax and held that the State’s taxation of the Trust violated the Due Process Clause. App. to Pet. for Cert. 62a.4 The North Carolina Court of Appeals affirmed, as did the North Carolina Supreme Court. A majority of the State Supreme Court reasoned that the Kaestner Trust and its beneficiaries “have legally —————— 4 The trial court also held that North Carolina’s tax violates the dormant Commerce Clause. The state appellate courts did not affirm on this basis, and we likewise do not address this challenge. Cite as: 588 U. S. ____ (2019) 5 Opinion of the Court separate, taxable existences” and thus that the contacts between the Kaestner family and their home State cannot establish a connection between the Trust “itself ” and the State. 371 N. C., at 140–142, 814 S.E.2d, at 49. We granted certiorari to decide whether the Due Process Clause prohibits States from taxing trusts based only on the in-state residency of trust beneficiaries. 586 U. S. ___ (2019). II The Due Process Clause provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Amdt. 14, §1. The Clause “centrally concerns the fundamental fairness of governmental activ- ity.” Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992), overruled on other grounds, South Dakota v. Way- fair, Inc., 585 U. S. ___, ___ (2018) (slip op., at 10). In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444 (1940). The power to tax is, of course, “essential to the very existence of government,” McCulloch v. Maryland, 4 Wheat. 316, 428 (1819), but the legitimacy of that power requires drawing a line between taxation and mere unjus- tified “confiscation.” Miller Brothers Co. v. Maryland, 347 U.S. 340, 342 (1954). That boundary turns on the “[t]he simple but controlling question . . . whether the state has given anything for which it can ask return.” Wisconsin, 311 U.S., at 444. The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “ ‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Quill, 504 U.S., at 306. Second, “the ‘income attributed to the State for tax 6 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court purposes must be rationally related to “values connected with the taxing State.” ’ ” Ibid.5 To determine whether a State has the requisite “mini- mum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe Co. v. Washington, 326 U.S. 310 (1945). Quill, 504 U.S., at 307. A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co., 326 U.S., at 316; see Quill, 504 U.S., at 308. The “minimum contacts” inquiry is “flexible” and focuses on the reason- ableness of the government’s action. Quill, 504 U.S., at 307. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question. International Shoe, 326 U.S., at 319. III One can imagine many contacts with a trust or its con- stituents that a State might treat, alone or in combination, as providing a “minimum connection” that justifies a tax on trust assets. The Court has already held that a tax on trust income distributed to an in-state resident passes muster under the Due Process Clause. Maguire v. Trefry, 253 U.S. 12, 16–17 (1920). So does a tax based on a trus- tee’s in-state residence. Greenough, 331 U.S., at 498. The Court’s cases also suggest that a tax based on the site of trust administration is constitutional. See Hanson v. Denckla, 357 U.S. 235, 251 (1958); Curry v. McCanless, 307 U.S. 357, 370 (1939). A different permutation is before the Court today. The Kaestner Trust made no distributions to any North Caro- —————— 5 Because North Carolina’s tax on the Kaestner Trust does not meet Quill’s first requirement, we do not address the second. Cite as: 588 U. S. ____ (2019) 7 Opinion of the Court lina resident in the years in question. 371 N. C., at 134– 135, 814 S.E.2d, at 45. The trustee resided out of State, and Trust administration was split between New York (where the Trust’s records were kept) and Massachusetts (where the custodians of its assets were located). Id., at 134, 814 S.E.2d, at 45. The trustee made no direct in- vestments in North Carolina in the relevant tax years, App. to Pet. for Cert. 52a, and the settlor did not reside in North Carolina. 371 N. C., at 134, 814 S.E.2d, at 45. Of all the potential kinds of connections between a trust and a State, the State seeks to rest its tax on just one: the in- state residence of the beneficiaries. Brief for Petitioner 34–36; see App. to Pet. for Cert. 54a. We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiar- ies have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of benefi- ciaries whose relationship to trust assets differs from that of the beneficiaries here. A In the past, the Court has analyzed state trust taxes for consistency with the Due Process Clause by looking to the relationship between the relevant trust constituent (set- tlor, trustee, or beneficiary) and the trust assets that the State seeks to tax. In the context of beneficiary contacts specifically, the Court has focused on the extent of the in- state beneficiary’s right to control, possess, enjoy, or re- ceive trust assets. The Court’s emphasis on these factors emerged in two early cases, Safe Deposit & Trust Co. of Baltimore v. Vir- ginia, 280 U.S. 83 (1929), and Brooke v. Norfolk, 277 U.S. 27 (1928), both of which invalidated state taxes premised 8 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court on the in-state residency of beneficiaries. In each case the challenged tax fell on the entirety of a trust’s property, rather than on only the share of trust assets to which the beneficiaries were entitled. Safe Deposit, 280 U.S., at 90, 92; Brooke, 277 U.S., at 28. In Safe Deposit, the Court rejected Virginia’s attempt to tax a trustee on the “whole corpus of the trust estate,” 280 U.S., at 90; see id., at 93, explaining that “nobody within Virginia ha[d] present right to [the trust property’s] control or possession, or to receive income therefrom,” id., at 91. In Brooke, the Court rejected a tax on the entirety of a trust fund assessed against a resident beneficiary because the trust property “[wa]s not within the State, d[id] not belong to the [benefi- ciary] and [wa]s not within her possession or control.” 277 U.S., at 29.6 On the other hand, the same elements of possession, control, and enjoyment of trust property led the Court to uphold state taxes based on the in-state residency of bene- ficiaries who did have close ties to the taxed trust assets. The Court has decided that States may tax trust income that is actually distributed to an in-state beneficiary. In those circumstances, the beneficiary “own[s] and enjoy[s]” an interest in the trust property, and the State can exact a tax in exchange for offering the beneficiary protection. Maguire, 253 U.S., at 17; see also Guaranty Trust Co. v. Virginia, 305 U.S. 19, 21–23 (1938). —————— 6 TheState contends that Safe Deposit is no longer good law under the more flexible approach in International Shoe Co. v. Washington, 326 U.S. 310 (1945), and also because it was premised on the view, later disregarded in Curry v. McCanless, 307 U.S. 357, 363 (1939), that the Due Process Clause forbids “double taxation.” Brief for Petitioner 27–28, and n. 12. We disagree. The aspects of the case noted here are consistent with the pragmatic approach reflected in International Shoe, and Curry distinguished Safe Deposit not because the earlier case incorrectly relied on concerns of double taxation but because the benefi- ciaries there had “[n]o comparable right or power” to that of the settlor in Curry. 307 U.S., at 371, n. 6. Cite as: 588 U. S. ____ (2019) 9 Opinion of the Court All of the foregoing cases reflect a common governing principle: When a State seeks to base its tax on the in- state residence of a trust beneficiary, the Due Process Clause demands a pragmatic inquiry into what exactly the beneficiary controls or possesses and how that interest relates to the object of the State’s tax. See Safe Deposit, 280 U.S., at 91. Although the Court’s resident-beneficiary cases are most relevant here, similar analysis also appears in the context of taxes premised on the in-state residency of settlors and trustees. In Curry, for instance, the Court upheld a Ten- nessee trust tax because the settlor was a Tennessee resident who retained “power to dispose of ” the property, which amounted to “a potential source of wealth which was property in her hands.” 307 U.S., at 370. That prac- tical control over the trust assets obliged the settlor “to contribute to the support of the government whose protec- tion she enjoyed.” Id., at 371; see also Graves v. Elliott, 307 U.S. 383, 387 (1939) (a settlor’s “right to revoke [a] trust and to demand the transmission to her of the intan- gibles . . . was a potential source of wealth” subject to tax by her State of residence).7 A focus on ownership and rights to trust assets also featured in the Court’s ruling that a trustee’s in-state residence can provide the basis for a State to tax trust assets. In Greenough, the Court explained that the rela- tionship between trust assets and a trustee is akin to the “close relationship between” other types of intangible property and the owners of such property. 331 U. S., at —————— 7 Though the Court did not have occasion in Curry or Graves to ex- plore whether a lesser degree of control by a settlor also could sustain a tax by the settlor’s domicile (and we do not today address that possibil- ity), these cases nevertheless reinforce the logic employed by Safe Deposit, Brooke v. Norfolk, 277 U.S. 27 (1928), Maguire v. Trefry, 253 U.S. 12 (1920), and Guaranty Trust Co. v. Virginia, 305 U.S. 19 (1938), in the beneficiary context. 10 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court 493. The trustee is “the owner of [a] legal interest in” the trust property, and in that capacity he can incur obliga- tions, become personally liable for contracts for the trust, or have specific performance ordered against him. Id., at 494. At the same time, the trustee can turn to his home State for “benefit and protection through its law,” id., at 496, for instance, by resorting to the State’s courts to resolve issues related to trust administration or to enforce trust claims, id., at 495. A State therefore may tax a resident trustee on his interest in a share of trust assets. Id., at 498. In sum, when assessing a state tax premised on the in- state residency of a constituent of a trust—whether bene- ficiary, settlor, or trustee—the Due Process Clause de- mands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Cf. Safe Deposit, 280 U.S., at 91–92.8 Otherwise, the State’s rela- tionship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires. See Quill, 504 U.S., at 306. B Applying these principles here, we conclude that the —————— 8 As explained below, we hold that the Kaestner Trust beneficiaries do not have the requisite relationship with the Trust property to justify the State’s tax. We do not decide what degree of possession, control, or enjoyment would be sufficient to support taxation. Cite as: 588 U. S. ____ (2019) 11 Opinion of the Court residence of the Kaestner Trust beneficiaries in North Carolina alone does not supply the minimum connection necessary to sustain the State’s tax. First, the beneficiaries did not receive any income from the trust during the years in question. If they had, such income would have been taxable. See Maguire, 253 U.S., at 17; Guaranty Trust Co., 305 U.S., at 23. Second, the beneficiaries had no right to demand trust income or otherwise control, possess, or enjoy the trust assets in the tax years at issue. The decision of when, whether, and to whom the trustee would distribute the trust’s assets was left to the trustee’s “absolute discretion.” Art. I, §1.2(a), App. 46–47. In fact, the Trust agreement explicitly authorized the trustee to distribute funds to one beneficiary to “the exclusion of other[s],” with the effect of cutting one or more beneficiaries out of the Trust. Art. I, §1.4, id., at 50. The agreement also authorized the trus- tee, not the beneficiaries, to make investment decisions regarding Trust property. Art. V, §5.2, id., at 55–60. The Trust agreement prohibited the beneficiaries from assign- ing to another person any right they might have to the Trust property, Art. XII, id., at 70–71, thus making the beneficiaries’ interest less like “a potential source of wealth [that] was property in [their] hands.” Curry, 307 U.S., at 370–371.9 To be sure, the Kaestner Trust agreement also instructed the trustee to view the trust “as a family asset and to be liberal in the exercise of the discretion conferred,” suggest- ing that the trustee was to make distributions generously with the goal of “meet[ing] the needs of the Beneficiaries” in various respects. Art. I, §1.4(c), App. 51. And the trus- —————— 9 We do not address whether a beneficiary’s ability to assign a poten- tial interest in income from a trust would afford that beneficiary sufficient control or possession over, or enjoyment of, the property to justify taxation based solely on his or her in-state residence. 12 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court tee of a discretionary trust has a fiduciary duty not to “act in bad faith or for some purpose or motive other than to accomplish the purposes of the discretionary power.” 2 Restatement (Third) of Trusts §50, Comment c, p. 262 (2003). But by reserving sole discretion to the trustee, the Trust agreement still deprived Kaestner and her children of any entitlement to demand distributions or to direct the use of the Trust assets in their favor in the years in question. Third, not only were Kaestner and her children unable to demand distributions in the tax years at issue, but they also could not count on necessarily receiving any specific amount of income from the Trust in the future. Although the Trust agreement provided for the Trust to terminate in 2009 (on Kaestner’s 40th birthday) and to distribute assets to Kaestner, Art. I, §1.2(c)(1), App. 47, New York law allowed the trustee to roll over the trust assets into a new trust rather than terminating it. N. Y. Est., Powers & Trusts §10–6.6(b). Here, the trustee did just that. 371 N. C., at 135, 814 S.E.2d, at 45.10 —————— 10 In light of these features, one might characterize the interests of the beneficiaries as “contingent” on the exercise of the trustee’s discre- tion. See Fondren v. Commissioner, 324 U.S. 18, 21 (1945) (describing “the exercise of the trustee’s discretion” as an example of a contin- gency); see also United States v. O’Malley, 383 U.S. 627, 631 (1966) (de- scribing a grantor’s power to add income to the trust principal instead of distributing it and “thereby den[y] to the beneficiaries the privilege of immediate enjoyment and conditio[n] their eventual enjoyment upon surviving the termination of the trust”); Commissioner v. Estate of Holmes, 326 U.S. 480, 487 (1946) (the termination of a contingency changes “the mere prospect or possibility, even the probability, that one may have [enjoyment of property] at some uncertain future time or perhaps not at all” into a “present substantial benefit”). We have no occasion to address, and thus reserve for another day, whether a different result would follow if the beneficiaries were certain to receive funds in the future. See, e.g., Cal. Rev. & Tax. Code Ann. §17742(a) (West 2019); Commonwealth v. Stewart, 338 Pa. 9, 16–19, 12 A.2d 444, 448–449 (1940) (upholding a tax on the equitable interest of a benefi- Cite as: 588 U. S. ____ (2019) 13 Opinion of the Court Like the beneficiaries in Safe Deposit, then, Kaestner and her children had no right to “control or posses[s]” the trust assets “or to receive income therefrom.” 280 U.S., at 91. The beneficiaries received no income from the Trust, had no right to demand income from the Trust, and had no assurance that they would eventually receive a specific share of Trust income. Given these features of the Trust, the beneficiaries’ residence cannot, consistent with due process, serve as the sole basis for North Carolina’s tax on trust income.11 IV The State’s counterarguments do not save its tax. First, the State interprets Greenough as standing for the —————— ciary who had “a right to the income from [a] trust for life”), aff’d, 312 U.S. 649 (1941). 11 Because the reasoning above resolves this case in the Trust’s favor, it is unnecessary to reach the Trust’s broader argument that the trustee’s contacts alone determine the State’s power over the Trust. Brief for Respondent 23–30. The Trust relies for this proposition on Hanson v. Denckla, 357 U.S. 235 (1958), which held that a Florida court lacked jurisdiction to adjudicate the validity of a trust agreement even though the trust settlor and most of the trust beneficiaries were domiciled in Florida. Id., at 254. The problem was that Florida law made the trustee “an indispensable party over whom the court [had to] acquire jurisdiction” before resolving a trust’s validity, and the trustee was a nonresident. Ibid. In deciding that the Florida courts lacked jurisdiction over the proceeding, the Court rejected the relevance of the trust beneficiaries’ residence and focused instead on the “acts of the trustee” himself, which the Court found insufficient to support jurisdic- tion. Ibid. The State counters that Hanson is inapposite because the State’s tax applies to the trust rather than to the trustee and because Hanson arose in the context of adjudicative jurisdiction rather than tax jurisdic- tion. Brief for Petitioner 21, n. 9; Reply Brief 16–17. There is no need to resolve the parties’ dueling interpretations of Hanson. Even if beneficiary contacts—such as residence—could be sufficient in some circumstances to support North Carolina’s power to impose this tax, the residence alone of the Kaestner Trust beneficiaries cannot do so for the reasons given above. 14 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court broad proposition that “a trust and its constituents” are always “inextricably intertwined.” Brief for Petitioner 26. Because trustee residence supports state taxation, the State contends, so too must beneficiary residence. The State emphasizes that beneficiaries are essential to a trust and have an “equitable interest” in its assets. Greenough, 331 U.S., at 494. In Stone v. White, 301 U.S. 532 (1937), the State notes, the Court refused to “shut its eyes to the fact” that a suit to recover taxes from a trust was in reality a suit regarding “the beneficiary’s money.” Id., at 535. The State also argues that its tax is at least as fair as the tax in Greenough because the Trust benefits from North Carolina law by way of the beneficiaries, who enjoy secure banks to facilitate asset transfers and also partake of services (such as subsidized public education) that obviate the need to make distributions (for example, to fund bene- ficiaries’ educations). Brief for Petitioner 30–33. The State’s argument fails to grapple with the wide variation in beneficiaries’ interests. There is no doubt that a beneficiary is central to the trust relationship, and beneficiaries are commonly understood to hold “beneficial interests (or ‘equitable title’) in the trust property,” 2 Restatement (Third) of Trusts §42, Comment a, at 186. In some cases the relationship between beneficiaries and trust assets is so close as to be beyond separation. In Stone, for instance, the beneficiary had already received the trust income on which the government sought to re- cover tax. See 301 U.S., at 533. But, depending on the trust agreement, a beneficiary may have only a “future interest,” an interest that is “subject to conditions,” or an interest that is controlled by a trustee’s discretionary decisions. 2 Restatement (Third) of Trusts §49, Comment b, at 243. By contrast, in Greenough, the requisite connec- tion with the State arose from a legal interest that neces- sarily carried with it predictable responsibilities and liabilities. See 331 U.S., at 494. The different forms of Cite as: 588 U. S. ____ (2019) 15 Opinion of the Court beneficiary interests counsels against adopting the cate- gorical rule that the State urges. Second, the State argues that ruling in favor of the Trust will undermine numerous state taxation regimes. Tr. of Oral Arg. 8, 68; Brief for Petitioner 6, and n. 1. Today’s ruling will have no such sweeping effect. North Carolina is one of a small handful of States that rely on beneficiary residency as a sole basis for trust taxation, and one of an even smaller number that will rely on the resi- dency of beneficiaries regardless of whether the benefi- ciary is certain to receive trust assets.12 Today’s decision does not address state laws that consider the in-state residency of a beneficiary as one of a combination of fac- tors, that turn on the residency of a settlor, or that rely only on the residency of noncontingent beneficiaries, see, e.g., Cal. Rev. & Tax. Code Ann. §17742(a).13 We express —————— 12 The State directs the Court’s attention to 10 other state trust taxa- tion statutes that also look to trust beneficiaries’ in-state residency, see Brief for Petitioner 6, and n. 1, but 5 are unlike North Carolina’s because they consider beneficiary residence only in combination with other factors, see Ala. Code §40–18–1(33) (2011); Conn. Gen. Stat. §12– 701(a)(4) (2019 Cum. Supp.); Mo. Rev. Stat. §§143.331(2), (3) (2016); Ohio Rev. Code Ann. §5747.01(I)(3) (Lexis Supp. 2019); R. I. Gen. Laws §44–30–5(c) (2010). Of the remaining five statutes, it is not clear that the flexible tests employed in Montana and North Dakota permit reliance on beneficiary residence alone. See Mont. Admin. Rule 42.30.101(16) (2016); N. D. Admin. Code §81–03–02.1–04(2) (2018). Similarly, Georgia’s imposition of a tax on the sole basis of beneficiary residency is disputed. See Ga. Code Ann. §48–7–22(a)(1)(C) (2017); Brief for Respondent 52, n. 20. Tennessee will be phasing out its income tax entirely by 2021. H. B. 534, 110th Gen. Assem., Reg. Sess. (2017) (enacted); see Tenn. Code Ann. §67–2–110(a) (2013). That leaves California, which (unlike North Carolina) applies its tax on the basis of beneficiary residency only where the beneficiary is not contingent. Cal. Rev. & Tax. Code Ann. §17742(a); see also n. 10, supra. 13 The Trust also raises no challenge to the practice known as throw- back taxation, by which a State taxes accumulated income at the time it is actually distributed. See, e.g., Cal. Rev. & Tax. Code Ann. §17745(b). 16 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court no opinion on the validity of such taxes. Finally, North Carolina urges that adopting the Trust’s position will lead to opportunistic gaming of state tax systems, noting that trust income nationally exceeded $120 billion in 2014. See Brief for Petitioner 39, and n. 13. The State is concerned that a beneficiary in Kaestner’s position will delay taking distributions until she moves to a State with a lower level of taxation, thereby paying less tax on the funds she ultimately receives. See id., at 40. Though this possibility is understandably troubling to the State, it is by no means certain that it will regularly come to pass. First, the power to make distributions to Kaestner or her children resides with the trustee. When and whether to make distributions is not for Kaestner to decide, and in fact the trustee may distribute funds to Kaestner while she resides in North Carolina (or deny her distributions entirely). Second, we address only the cir- cumstances in which a beneficiary receives no trust in- come, has no right to demand that income, and is uncer- tain necessarily to receive a specific share of that income. Settlors who create trusts in the future will have to weigh the potential tax benefits of such an arrangement against the costs to the trust beneficiaries of lesser control over trust assets. In any event, mere speculation about nega- tive consequences cannot conjure the “minimum connec- tion” missing between North Carolina and the object of its tax. * * * For the foregoing reasons, we affirm the judgment of the Supreme Court of North Carolina. It is so ordered. Cite as: 588 U. S. ____ (2019) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 18–457 _________________ NORTH CAROLINA DEPARTMENT OF REVENUE, PETITIONER v.

This case is about the limits of a State’s power to tax a trust. North Carolina imposes a tax on any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. (2017). The North Caro- lina courts interpret this law to mean that a trust owes income tax to North Carolina whenever the trust’s benefi- ciaries live in the State, even if—as is the case here—those beneficiaries received no income from the trust in the relevant tax year, had no right to demand income from the trust in that year, and could not count on ever receiving income from the trust. The North Carolina courts held the tax to be unconstitutional when assessed in such a case because the State lacks the minimum connection with the object of its tax that the Constitution requires. We agree and affirm. As applied in these circumstances, the State’s tax violates the Due Process Clause of the Fourteenth Amendment. 2 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court I A In its simplest form, a trust is created when one person (a “settlor” or “grantor”) transfers property to a third party (a “trustee”) to administer for the benefit of another (a “beneficiary”). A. Hess, G. Bogert, & G. Bogert, Law of Trusts and Trustees pp. 8– (3d ed. 2007). As tradi- tionally understood, the arrangement that results is not a “distinct legal entity, but a ‘fiduciary relationship’ between multiple people.” Americold Realty Trust v. ConAgra Foods, Inc., 577 U. S. (2016) (slip op., at 5). The trust comprises the separate interests of the beneficiary, who has an “equitable interest” in the trust property, and the trustee, who has a “legal interest” in that property. (1947). In some contexts, however, trusts can be treated as if the trust itself has “a separate existence” from its constituent parts.1 The trust that challenges North Carolina’s tax had its first incarnation nearly 30 years ago, when New Yorker Joseph Lee Rice III formed a trust for the benefit of his children. Rice decided that the trust would be governed by the law of his home State, New York, and he appointed a fellow New York resident as the trustee.2 The trust agreement provided that the trustee would have “absolute discretion” to distribute the trust’s assets to the beneficiar- ies “in such amounts and proportions” as the trustee might “from time to time” decide. Art. I, App. 46– 47. When Rice created the trust, no trust beneficiary lived —————— 1 Most notably, trusts are treated as distinct entities for federal taxa- tion purposes. 331 U.S., ; see 2 This trustee later was succeeded by a new trustee who was a Con- necticut resident during the relevant time period. Cite as: 588 U. S. (2019) 3 Opinion of the Court in North Carolina. That changed in 1997, when Rice’s daughter, Kimberley Rice Kaestner, moved to the State. She and her minor children were residents of North Caro- lina from 2005 through 2008, the time period relevant for this case. A few years after Kaestner moved to North Carolina, the trustee divided Rice’s initial trust into three subtrusts. One of these subtrusts—the Kimberley Rice Kaestner 1992 Family Trust (Kaestner Trust or Trust)—was formed for the benefit of Kaestner and her three children. The same agreement that controlled the original trust also governed the Kaestner Trust. Critically, this meant that the trustee had exclusive control over the allocation and timing of trust distributions. North Carolina explained in the state-court proceedings that the State’s only connection to the Trust in the rele- vant tax years was the in-state residence of the Trust’s beneficiaries. App. to Pet. for Cert. 54a. From 2005 through 2008, the trustee chose not to distribute any of the income that the Trust accumulated to Kaestner or her children, and the trustee’s contacts with Kaestner were “infrequent.”3 The Trust was subject to New York law, Art. X, App. 69, the grantor was a New York resident, App. 44, and no trustee lived in North Carolina, 371 N. C., at The trustee kept the Trust documents and records in New York, and the Trust asset custodians were located in Massachusetts. The Trust also maintained no physical presence in North Carolina, made no direct investments in the State, and held no real prop- erty there. App. to Pet. for Cert. 52a–53a. —————— 3 The state court identified only two meetings between Kaestner and the trustee in those years, both of which took place in New York. 371 N. C. 133, The trustee also gave Kaestner accountings of trust assets and legal advice concerning the Trust. 814 S. E. 2d, at 45. 4 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court The Trust agreement provided that the Kaestner Trust would terminate when Kaestner turned 40, after the time period relevant here. After consulting with Kaestner and in accordance with her wishes, however, the trustee rolled over the assets into a new trust instead of distributing them to her. This transfer took place after the relevant tax years. See N. Y. Est., Powers & Trusts Law Ann. 6.6(b) (West 2002) (authorizing this action). B North Carolina taxes any trust income that “is for the benefit of ” a North Carolina resident. N. C. Gen. Stat. Ann. The North Carolina Supreme Court interprets the statute to authorize North Carolina to tax a trust on the sole basis that the trust beneficiaries reside in the State. 371 N. C., at –, Applying this statute, the North Carolina Department of Revenue assessed a tax on the full proceeds that the Kaestner Trust accumulated for tax years 2005 through 2008 and required the trustee to pay it. See N. C. Gen. Stat. Ann. The resulting tax bill amounted to more than $1.3 million. The trustee paid the tax under protest and then sued in state court, arguing that the tax as applied to the Kaestner Trust violates the Due Process Clause of the Fourteenth Amendment. The trial court decided that the Kaestners’ residence in North Carolina was too tenuous a link between the State and the Trust to support the tax and held that the State’s taxation of the Trust violated the Due Process Clause. App. to Pet. for Cert. 62a.4 The North Carolina Court of Appeals affirmed, as did the North Carolina Supreme Court. A majority of the State Supreme Court reasoned that the Kaestner Trust and its beneficiaries “have legally —————— 4 The trial court also held that North Carolina’s tax violates the dormant Commerce Clause. The state appellate courts did not affirm on this basis, and we likewise do not address this challenge. Cite as: 588 U. S. (2019) 5 Opinion of the Court separate, taxable existences” and thus that the contacts between the Kaestner family and their home State cannot establish a connection between the Trust “itself ” and the State. 371 N. C., at 140–, We granted certiorari to decide whether the Due Process Clause prohibits States from taxing trusts based only on the in-state residency of trust beneficiaries. 586 U. S. (2019). II The Due Process Clause provides that “[n]o State shall deprive any person of life, liberty, or property, without due process of law.” Amdt. 14, The Clause “centrally concerns the fundamental fairness of governmental activ- ity.” 4 U.S. 298, (1992), overruled on other grounds, South Dakota v. Way- fair, Inc., 585 U. S. (slip op., at ). In the context of state taxation, the Due Process Clause limits States to imposing only taxes that “bea[r] fiscal relation to protection, opportunities and benefits given by the state.” 444 (1940). The power to tax is, of course, “essential to the very existence of government,” McCulloch v. Maryland, 4 Wheat. 316, 428 (1819), but the legitimacy of that power requires drawing a line between taxation and mere unjus- tified “confiscation.” Miller Brothers v. Maryland, 347 U.S. 340, 342 (1954). That boundary turns on the “[t]he simple but controlling question whether the state has given anything for which it can ask return.” Wisconsin, The Court applies a two-step analysis to decide if a state tax abides by the Due Process Clause. First, and most relevant here, there must be “ ‘some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” 4 U.S., at 306. Second, “the ‘income attributed to the State for tax 6 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court purposes must be rationally related to “values connected with the taxing State.” ’ ” 5 To determine whether a State has the requisite “mini- mum connection” with the object of its tax, this Court borrows from the familiar test of International Shoe v. Washington, 4 U.S., at 307. A State has the power to impose a tax only when the taxed entity has “certain minimum contacts” with the State such that the tax “does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe 326 U.S., at 316; see 4 U.S., at 308. The “minimum contacts” inquiry is “flexible” and focuses on the reason- ableness of the government’s action. 4 U.S., at 307. Ultimately, only those who derive “benefits and protection” from associating with a State should have obligations to the State in question. International Shoe, III One can imagine many contacts with a trust or its con- stituents that a State might treat, alone or in combination, as providing a “minimum connection” that justifies a tax on trust assets. The Court has already held that a tax on trust income distributed to an in-state resident passes muster under the Due Process Clause. So does a tax based on a trus- tee’s in-state residence. The Court’s cases also suggest that a tax based on the site of trust administration is constitutional. See Hanson v. Denckla, ; A different permutation is before the Court today. The Kaestner Trust made no distributions to any North Caro- —————— 5 Because North Carolina’s tax on the Kaestner Trust does not meet ’s first requirement, we do not address the second. Cite as: 588 U. S. (2019) 7 Opinion of the Court lina resident in the years in question. 371 N. C., at – The trustee resided out of State, and Trust administration was split between New York (where the Trust’s records were kept) and Massachusetts (where the custodians of its assets were located). at The trustee made no direct in- vestments in North Carolina in the relevant tax years, App. to Pet. for Cert. 52a, and the settlor did not reside in North Carolina. 371 N. C., at Of all the potential kinds of connections between a trust and a State, the State seeks to rest its tax on just one: the in- state residence of the beneficiaries. Brief for Petitioner 34–36; see App. to Pet. for Cert. 54a. We hold that the presence of in-state beneficiaries alone does not empower a State to tax trust income that has not been distributed to the beneficiaries where the beneficiar- ies have no right to demand that income and are uncertain ever to receive it. In limiting our holding to the specific facts presented, we do not imply approval or disapproval of trust taxes that are premised on the residence of benefi- ciaries whose relationship to trust assets differs from that of the beneficiaries here. A In the past, the Court has analyzed state trust taxes for consistency with the Due Process Clause by looking to the relationship between the relevant trust constituent (set- tlor, trustee, or beneficiary) and the trust assets that the State seeks to tax. In the context of beneficiary contacts specifically, the Court has focused on the extent of the in- state beneficiary’s right to control, possess, enjoy, or re- ceive trust assets. The Court’s emphasis on these factors emerged in two early cases, Safe & Trust of and v. Norfolk, 277 U.S. 27 both of which invalidated state taxes premised 8 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court on the in-state residency of beneficiaries. In each case the challenged tax fell on the entirety of a trust’s property, rather than on only the share of trust assets to which the beneficiaries were entitled. Safe 92; In Safe the Court rejected Virginia’s attempt to tax a trustee on the “whole corpus of the trust estate,” ; see explaining that “nobody within Virginia ha[d] present right to [the trust property’s] control or possession, or to receive income therefrom,” In the Court rejected a tax on the entirety of a trust fund assessed against a resident beneficiary because the trust property “[wa]s not within the State, d[id] not belong to the [benefi- ciary] and [wa]s not within her possession or control.” 277 U.S., at 29.6 On the other hand, the same elements of possession, control, and enjoyment of trust property led the Court to uphold state taxes based on the in-state residency of bene- ficiaries who did have close ties to the taxed trust assets. The Court has decided that States may tax trust income that is actually distributed to an in-state beneficiary. In those circumstances, the beneficiary “own[s] and enjoy[s]” an interest in the trust property, and the State can exact a tax in exchange for offering the beneficiary protection. ; see also Guaranty Trust v. Virginia, —————— 6 TheState contends that Safe is no longer good law under the more flexible approach in International Shoe and also because it was premised on the view, later disregarded in that the Due Process Clause forbids “double taxation.” Brief for Petitioner 27–28, and n. 12. We disagree. The aspects of the case noted here are consistent with the pragmatic approach reflected in International Shoe, and Curry distinguished Safe not because the earlier case incorrectly relied on concerns of double taxation but because the benefi- ciaries there had “[n]o comparable right or power” to that of the settlor in n. 6. Cite as: 588 U. S. (2019) 9 Opinion of the Court All of the foregoing cases reflect a common governing principle: When a State seeks to base its tax on the in- state residence of a trust beneficiary, the Due Process Clause demands a pragmatic inquiry into what exactly the beneficiary controls or possesses and how that interest relates to the object of the State’s tax. See Safe 280 U.S., Although the Court’s resident-beneficiary cases are most relevant here, similar analysis also appears in the context of taxes premised on the in-state residency of settlors and trustees. In Curry, for instance, the Court upheld a Ten- nessee trust tax because the settlor was a Tennessee resident who retained “power to dispose of ” the property, which amounted to “a potential source of wealth which was property in her hands.” 307 U.S., at That prac- tical control over the trust assets obliged the settlor “to contribute to the support of the government whose protec- tion she enjoyed.” ; see also (a settlor’s “right to revoke [a] trust and to demand the transmission to her of the intan- gibles was a potential source of wealth” subject to tax by her State of residence).7 A focus on ownership and rights to trust assets also featured in the Court’s ruling that a trustee’s in-state residence can provide the basis for a State to tax trust assets. In the Court explained that the rela- tionship between trust assets and a trustee is akin to the “close relationship between” other types of intangible property and the owners of such property. 331 U. S., at —————— 7 Though the Court did not have occasion in Curry or Graves to ex- plore whether a lesser degree of control by a settlor also could sustain a tax by the settlor’s domicile (and we do not today address that possibil- ity), these cases nevertheless reinforce the logic employed by Safe v. Norfolk, v. Trefry, 253 U.S. 12 and Guaranty Trust in the beneficiary context. NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court 493. The trustee is “the owner of [a] legal interest in” the trust property, and in that capacity he can incur obliga- tions, become personally liable for contracts for the trust, or have specific performance ordered against him. at At the same time, the trustee can turn to his home State for “benefit and protection through its law,” at 496, for instance, by resorting to the State’s courts to resolve issues related to trust administration or to enforce trust claims, A State therefore may tax a resident trustee on his interest in a share of trust assets. In sum, when assessing a state tax premised on the in- state residency of a constituent of a trust—whether bene- ficiary, settlor, or trustee—the Due Process Clause de- mands attention to the particular relationship between the resident and the trust assets that the State seeks to tax. Because each individual fulfills different functions in the creation and continuation of the trust, the specific features of that relationship sufficient to sustain a tax may vary depending on whether the resident is a settlor, beneficiary, or trustee. When a tax is premised on the in- state residence of a beneficiary, the Constitution requires that the resident have some degree of possession, control, or enjoyment of the trust property or a right to receive that property before the State can tax the asset. Cf. Safe 280 U.S., –92.8 Otherwise, the State’s rela- tionship to the object of its tax is too attenuated to create the “minimum connection” that the Constitution requires. See 4 U.S., at 306. B Applying these principles here, we conclude that the —————— 8 As explained below, we hold that the Kaestner Trust beneficiaries do not have the requisite relationship with the Trust property to justify the State’s tax. We do not decide what degree of possession, control, or enjoyment would be sufficient to support taxation. Cite as: 588 U. S. (2019) 11 Opinion of the Court residence of the Kaestner Trust beneficiaries in North Carolina alone does not supply the minimum connection necessary to sustain the State’s tax. First, the beneficiaries did not receive any income from the trust during the years in question. If they had, such income would have been taxable. See 253 U.S., at 17; Guaranty Trust Second, the beneficiaries had no right to demand trust income or otherwise control, possess, or enjoy the trust assets in the tax years at issue. The decision of when, whether, and to whom the trustee would distribute the trust’s assets was left to the trustee’s “absolute discretion.” Art. I, App. 46–47. In fact, the Trust agreement explicitly authorized the trustee to distribute funds to one beneficiary to “the exclusion of other[s],” with the effect of cutting one or more beneficiaries out of the Trust. Art. I, 4, at The agreement also authorized the trus- tee, not the beneficiaries, to make investment decisions regarding Trust property. Art. V, at 55–60. The Trust agreement prohibited the beneficiaries from assign- ing to another person any right they might have to the Trust property, Art. XII, at 70–71, thus making the beneficiaries’ interest less like “a potential source of wealth [that] was property in [their] hands.” Curry, 307 U.S., at –371.9 To be sure, the Kaestner Trust agreement also instructed the trustee to view the trust “as a family asset and to be liberal in the exercise of the discretion conferred,” suggest- ing that the trustee was to make distributions generously with the goal of “meet[ing] the needs of the Beneficiaries” in various respects. Art. I, 4(c), App. 51. And the trus- —————— 9 We do not address whether a beneficiary’s ability to assign a poten- tial interest in income from a trust would afford that beneficiary sufficient control or possession over, or enjoyment of, the property to justify taxation based solely on his or her in-state residence. 12 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court tee of a discretionary trust has a fiduciary duty not to “act in bad faith or for some purpose or motive other than to accomplish the purposes of the discretionary power.” 2 Restatement (Third) of Trusts §, Comment c, p. 262 (2003). But by reserving sole discretion to the trustee, the Trust agreement still deprived Kaestner and her children of any entitlement to demand distributions or to direct the use of the Trust assets in their favor in the years in question. Third, not only were Kaestner and her children unable to demand distributions in the tax years at issue, but they also could not count on necessarily receiving any specific amount of income from the Trust in the future. Although the Trust agreement provided for the Trust to terminate in 2009 (on Kaestner’s 40th birthday) and to distribute assets to Kaestner, Art. I, 2(c)(1), App. 47, New York law allowed the trustee to roll over the trust assets into a new trust rather than terminating it. N. Y. Est., Powers & Trusts 6.6(b). Here, the trustee did just that. 371 N. C., —————— In light of these features, one might characterize the interests of the beneficiaries as “contingent” on the exercise of the trustee’s discre- tion. See (describing “the exercise of the trustee’s discretion” as an example of a contin- gency); see also United (de- scribing a grantor’s power to add income to the trust principal instead of distributing it and “thereby den[y] to the beneficiaries the privilege of immediate enjoyment and conditio[n] their eventual enjoyment upon surviving the termination of the trust”); (the termination of a contingency changes “the mere prospect or possibility, even the probability, that one may have [enjoyment of property] at some uncertain future time or perhaps not at all” into a “present substantial benefit”). We have no occasion to address, and thus reserve for another day, whether a different result would follow if the beneficiaries were certain to receive funds in the future. See, e.g., Cal. Rev. & Tax. Code Ann. (West 2019); 16–19, 448–449 (1940) (upholding a tax on the equitable interest of a benefi- Cite as: 588 U. S. (2019) 13 Opinion of the Court Like the beneficiaries in Safe then, Kaestner and her children had no right to “control or posses[s]” the trust assets “or to receive income therefrom.” 280 U.S., at 91. The beneficiaries received no income from the Trust, had no right to demand income from the Trust, and had no assurance that they would eventually receive a specific share of Trust income. Given these features of the Trust, the beneficiaries’ residence cannot, consistent with due process, serve as the sole basis for North Carolina’s tax on trust income.11 IV The State’s counterarguments do not save its tax. First, the State interprets as standing for the —————— ciary who had “a right to the income from [a] trust for life”), aff’d, U.S. 649 (1941). 11 Because the reasoning above resolves this case in the Trust’s favor, it is unnecessary to reach the Trust’s broader argument that the trustee’s contacts alone determine the State’s power over the Trust. Brief for Respondent 23–30. The Trust relies for this proposition on which held that a Florida court lacked jurisdiction to adjudicate the validity of a trust agreement even though the trust settlor and most of the trust beneficiaries were domiciled in Florida. The problem was that Florida law made the trustee “an indispensable party over whom the court [had to] acquire jurisdiction” before resolving a trust’s validity, and the trustee was a nonresident. In deciding that the Florida courts lacked jurisdiction over the proceeding, the Court rejected the relevance of the trust beneficiaries’ residence and focused instead on the “acts of the trustee” himself, which the Court found insufficient to support jurisdic- tion. The State counters that Hanson is inapposite because the State’s tax applies to the trust rather than to the trustee and because Hanson arose in the context of adjudicative jurisdiction rather than tax jurisdic- tion. Brief for Petitioner n. 9; Reply Brief There is no need to resolve the parties’ dueling interpretations of Hanson. Even if beneficiary contacts—such as residence—could be sufficient in some circumstances to support North Carolina’s power to impose this tax, the residence alone of the Kaestner Trust beneficiaries cannot do so for the reasons given above. 14 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court broad proposition that “a trust and its constituents” are always “inextricably intertwined.” Brief for Petitioner 26. Because trustee residence supports state taxation, the State contends, so too must beneficiary residence. The State emphasizes that beneficiaries are essential to a trust and have an “equitable interest” in its assets. 331 U.S., at In the State notes, the Court refused to “shut its eyes to the fact” that a suit to recover taxes from a trust was in reality a suit regarding “the beneficiary’s money.” The State also argues that its tax is at least as fair as the tax in because the Trust benefits from North Carolina law by way of the beneficiaries, who enjoy secure banks to facilitate asset transfers and also partake of services (such as subsidized public education) that obviate the need to make distributions (for example, to fund bene- ficiaries’ educations). Brief for Petitioner 30–33. The State’s argument fails to grapple with the wide variation in beneficiaries’ interests. There is no doubt that a beneficiary is central to the trust relationship, and beneficiaries are commonly understood to hold “beneficial interests (or ‘equitable title’) in the trust property,” 2 Restatement (Third) of Trusts Comment a, at 186. In some cases the relationship between beneficiaries and trust assets is so close as to be beyond separation. In Stone, for instance, the beneficiary had already received the trust income on which the government sought to re- cover tax. See But, depending on the trust agreement, a beneficiary may have only a “future interest,” an interest that is “subject to conditions,” or an interest that is controlled by a trustee’s discretionary decisions. 2 Restatement (Third) of Trusts Comment b, at 243. By contrast, in the requisite connec- tion with the State arose from a legal interest that neces- sarily carried with it predictable responsibilities and liabilities. See 331 U.S., at The different forms of Cite as: 588 U. S. (2019) 15 Opinion of the Court beneficiary interests counsels against adopting the cate- gorical rule that the State urges. Second, the State argues that ruling in favor of the Trust will undermine numerous state taxation regimes. Tr. of Oral Arg. 8, 68; Brief for Petitioner 6, and n. 1. Today’s ruling will have no such sweeping effect. North Carolina is one of a small handful of States that rely on beneficiary residency as a sole basis for trust taxation, and one of an even smaller number that will rely on the resi- dency of beneficiaries regardless of whether the benefi- ciary is certain to receive trust assets.12 Today’s decision does not address state laws that consider the in-state residency of a beneficiary as one of a combination of fac- tors, that turn on the residency of a settlor, or that rely only on the residency of noncontingent beneficiaries, see, e.g., Cal. Rev. & Tax. Code Ann.13 We express —————— 12 The State directs the Court’s attention to other state trust taxa- tion statutes that also look to trust beneficiaries’ in-state residency, see Brief for Petitioner 6, and n. 1, but 5 are unlike North Carolina’s because they consider beneficiary residence only in combination with other factors, see –18–1(33) (2011); – 701(a)(4) (2019 Cum. Supp.); Mo. Rev. Stat. §§.331(2), (3) (2016); (I)(3) (Lexis Supp. 2019); R. I. Gen. Laws (20). Of the remaining five statutes, it is not clear that the flexible tests employed in Montana and North Dakota permit reliance on beneficiary residence alone. See Mont. Admin. Rule 42.30.1(16) (2016); N. D. Admin. Code Similarly, Georgia’s imposition of a tax on the sole basis of beneficiary residency is disputed. See –7–22(a)(1)(C) (2017); Brief for Respondent 52, n. 20. Tennessee will be phasing out its income tax entirely by 20. H. B. 534, 1th Gen. Assem., Reg. Sess. (2017) (enacted); see –2–1(a) (2013). That leaves California, which (unlike North Carolina) applies its tax on the basis of beneficiary residency only where the beneficiary is not contingent. Cal. Rev. & Tax. Code Ann. ; see also n. 13 The Trust also raises no challenge to the practice known as throw- back taxation, by which a State taxes accumulated income at the time it is actually distributed. See, e.g., Cal. Rev. & Tax. Code Ann. 16 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST Opinion of the Court no opinion on the validity of such taxes. Finally, North Carolina urges that adopting the Trust’s position will lead to opportunistic gaming of state tax systems, noting that trust income nationally exceeded $120 billion in 2014. See Brief for Petitioner 39, and n. 13. The State is concerned that a beneficiary in Kaestner’s position will delay taking distributions until she moves to a State with a lower level of taxation, thereby paying less tax on the funds she ultimately receives. See Though this possibility is understandably troubling to the State, it is by no means certain that it will regularly come to pass. First, the power to make distributions to Kaestner or her children resides with the trustee. When and whether to make distributions is not for Kaestner to decide, and in fact the trustee may distribute funds to Kaestner while she resides in North Carolina (or deny her distributions entirely). Second, we address only the cir- cumstances in which a beneficiary receives no trust in- come, has no right to demand that income, and is uncer- tain necessarily to receive a specific share of that income. Settlors who create trusts in the future will have to weigh the potential tax benefits of such an arrangement against the costs to the trust beneficiaries of lesser control over trust assets. In any event, mere speculation about nega- tive consequences cannot conjure the “minimum connec- tion” missing between North Carolina and the object of its tax. * * * For the foregoing reasons, we affirm the judgment of the Supreme Court of North Carolina. It is so ordered. Cite as: 588 U. S. (2019) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 18–457 NORTH CAROLINA DEPARTMENT OF REVENUE, PETITIONER v.

Justice Alito

concurring

North Carolina Dept. of Revenue v. Kimberley Rice Kaestner 1992 Family Trust

2019-06-21

https://www.courtlistener.com/opinion/4631842/north-carolina-dept-of-revenue-v-kimberley-rice-kaestner-1992-family/

https://www.courtlistener.com/api/rest/v3/clusters/4631842/

2018-071

I join the opinion of the Court because it properly con- cludes that North Carolina’s tenuous connection to the income earned by the trust is insufficient to permit the State to tax the trust’s income. Because this connection is unusually tenuous, the opinion of the Court is circum- scribed. I write separately to make clear that the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions. * * * Kimberley Rice Kaestner is the beneficiary of a trust established by her father. She is also a resident of North Carolina. Between 2005 and 2008, North Carolina re- quired the trustee, who is a resident of Connecticut, to pay more than $1.3 million in taxes on income earned by the assets in the trust. North Carolina levied this tax because of Kaestner’s residence within the State. States have broad discretion to structure their tax sys- tems. But, in a few narrow areas, the Federal Constitu- tion imposes limits on that power. See, e.g., McCulloch v. 2 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST ALITO, J., concurring Maryland, 4 Wheat. 316 (1819); Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___ (2015). The Due Process Clause creates one such limit. It imposes restrictions on the persons and property that a State can subject to its taxation authority. “The Due Process Clause ‘requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Quill Corp. v. North Dakota, 504 U.S. 298, 306 (1992) (quoting Miller Brothers Co. v. Maryland, 347 U.S. 340, 344–345 (1954)), overruled in part on other grounds by South Dakota v. Wayfair, Inc., 585 U. S. ___ (2018). North Carolina assesses this tax against the trustee and calculates the tax based on the income earned by the trust. N. C. Gen. Stat. Ann. §105–160.2 (2017). Therefore we must look at the connections between the assets held in trust and the State. It is easy to identify a State’s connection with tangible assets. A tangible asset has a connection with the State in which it is located, and generally speaking, only that State has power to tax the asset. Curry v. McCanless, 307 U.S. 357, 364–365 (1939). Intangible assets—stocks, bonds, or other securities, for example—present a more difficult question. In the case of intangible assets held in trust, we have previously asked whether a resident of the State imposing the tax has control, possession, or the enjoyment of the asset. See Greenough v. Tax Assessors of Newport, 331 U.S. 486, 493–495 (1947); Curry, supra, at 370–371; Safe Deposit & Trust Co. of Baltimore v. Virginia, 280 U.S. 83, 93–94 (1929); Brooke v. Norfolk, 277 U.S. 27, 28–29 (1928). Because a trustee is the legal owner of the trust assets and possesses the powers that accompany that status—power to manage the investments, to make and enforce contracts respecting the assets, to litigate on be- half of the trust, etc.—the trustee’s State of residence can tax the trust’s intangible assets. Greenough, supra, at Cite as: 588 U. S. ____ (2019) 3 ALITO, J., concurring 494, 498. Here, we are asked whether the connection between a beneficiary and a trust is sufficient to allow the beneficiary’s State of residence to tax the trust assets and the income they earn while the assets and income remain in the trust in another State. Two cases provide a clear answer. In Brooke, Virginia assessed a tax on the assets of a trust whose beneficiary was a resident of Virginia. The trustee was not a resident of Virginia and administered the trust outside the Commonwealth. Under the terms of the trust, the beneficiary was entitled to all the income of the trust and had paid income taxes for the money that had been transferred to her. But the Court held that, despite the beneficiary’s present and ongoing right to receive income from the trust, Virginia could not impose taxes on the undistributed assets that remained within the trust because “the property is not within the State, does not belong to the petitioner and is not within her possession or control.” 277 U.S., at 29. Even though the beneficiary was entitled to and received income from the trust, we observed that “she [wa]s a stranger” to the assets within the trust because she lacked control, possession, or enjoyment of them. Ibid. In Safe Deposit, Virginia again attempted to assess taxes on the intangible assets held in a trust whose trus- tee resided in Maryland. The beneficiaries were children who lived in Virginia. Under the terms of the trust, each child was entitled to one half of the trust’s assets (both the original principal and the income earned over time) when the child reached the age of 25. Despite their entitlement to the entire corpus of the trust, the Court held that the beneficiaries’ residence did not allow Virginia to tax the assets while they remained in trust. “[N]obody within Virginia has present right to [the assets’] control or pos- session, or to receive income therefrom, or to cause them to be brought physically within her borders.” 280 U.S., at 4 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST ALITO, J., concurring 91.* The beneficiaries’ equitable ownership of the trust did not sufficiently connect the undistributed assets to Virginia as to allow taxation of the trust. The beneficiar- ies’ equitable ownership yielded to the “established fact of legal ownership, actual presence and control elsewhere.” Id., at 92. Here, as in Brooke and Safe Deposit, the resident benefi- ciary has neither control nor possession of the intangible assets in the trust. She does not enjoy the use of the trust assets. The trustee administers the trust and holds the trust assets outside the State of North Carolina. Under Safe Deposit and Brooke, that is sufficient to establish that North Carolina cannot tax the trust or the trustee on the intangible assets held by the trust. * * * The Due Process Clause requires a sufficient connection between an asset and a State before the State can tax the asset. For intangible assets held in trust, our precedents dictate that a resident beneficiary’s control, possession, and ability to use or enjoy the asset are the core of the inquiry. The opinion of the Court rightly concludes that the assets in this trust and the trust’s undistributed in- come cannot be taxed by North Carolina because the resident beneficiary lacks control, possession, or enjoy- ment of the trust assets. The Court’s discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases. On that basis, I concur. —————— * Although the Court noted that no Virginian had a present right “to receive income therefrom,” Brooke—where the beneficiary was entitled to and received income from the trust—suggests that even if the chil- dren had such a right, it would not, alone, justify taxing the trust corpus

I join the opinion of the Court because it properly con- cludes that North Carolina’s tenuous connection to the income earned by the trust is insufficient to permit the State to tax the trust’s income. Because this connection is unusually tenuous, the opinion of the Court is circum- scribed. I write separately to make clear that the opinion of the Court merely applies our existing precedent and that its decision not to answer questions not presented by the facts of this case does not open for reconsideration any points resolved by our prior decisions. * * * Kimberley Rice Kaestner is the beneficiary of a trust established by her father. She is also a resident of North Carolina. Between 2005 and 2008, North Carolina re- quired the trustee, who is a resident of Connecticut, to pay more than $1.3 million in taxes on income earned by the assets in the trust. North Carolina levied this tax because of Kaestner’s residence within the State. States have broad discretion to structure their tax sys- tems. But, in a few narrow areas, the Federal Constitu- tion imposes limits on that power. See, e.g., McCulloch v. 2 NORTH CAROLINA DEPT. OF ; Comptroller of Treasury of Md. v. Wynne, 575 U. S. (2015). The Due Process Clause creates one such limit. It imposes restrictions on the persons and property that a State can subject to its taxation authority. “The Due Process Clause ‘requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.’ ” Quill (1992) (quoting Miller Brothers Co. v. Maryland, 347 U.S. 340, 344–345 (1954)), overruled in part on other grounds by South Dakota v. Wayfair, Inc., 585 U. S. (2018). North Carolina assesses this tax against the trustee and calculates the tax based on the income earned by the trust. N. C. Gen. Stat. Ann. (2017). Therefore we must look at the connections between the assets held in trust and the State. It is easy to identify a State’s connection with tangible assets. A tangible asset has a connection with the State in which it is located, and generally speaking, only that State has power to tax the asset. v. McCanless, 307 U.S. 357, 364–365 (1939). Intangible assets—stocks, bonds, or other securities, for example—present a more difficult question. In the case of intangible assets held in trust, we have previously asked whether a resident of the State imposing the tax has control, possession, or the enjoyment of the asset. See v. Tax Assessors of Newport, 331 U.S. 486, 493–495 (1947); at 370–371; Safe Deposit & Trust Co. of 93–94 (1929); 28–29 (1928). Because a trustee is the legal owner of the trust assets and possesses the powers that accompany that status—power to manage the investments, to make and enforce contracts respecting the assets, to litigate on be- half of the trust, etc.—the trustee’s State of residence can tax the trust’s intangible assets. at Cite as: 588 U. S. (2019) 3 ALITO, J., concurring 494, 498. Here, we are asked whether the connection between a beneficiary and a trust is sufficient to allow the beneficiary’s State of residence to tax the trust assets and the income they earn while the assets and income remain in the trust in another State. Two cases provide a clear answer. In Brooke, Virginia assessed a tax on the assets of a trust whose beneficiary was a resident of Virginia. The trustee was not a resident of Virginia and administered the trust outside the Commonwealth. Under the terms of the trust, the beneficiary was entitled to all the income of the trust and had paid income taxes for the money that had been transferred to her. But the Court held that, despite the beneficiary’s present and ongoing right to receive income from the trust, Virginia could not impose taxes on the undistributed assets that remained within the trust because “the property is not within the State, does not belong to the petitioner and is not within her possession or control.” Even though the beneficiary was entitled to and received income from the trust, we observed that “she [wa]s a stranger” to the assets within the trust because she lacked control, possession, or enjoyment of them. In Safe Deposit, Virginia again attempted to assess taxes on the intangible assets held in a trust whose trus- tee resided in Maryland. The beneficiaries were children who lived in Virginia. Under the terms of the trust, each child was entitled to one half of the trust’s assets (both the original principal and the income earned over time) when the child reached the age of 25. Despite their entitlement to the entire corpus of the trust, the Court held that the beneficiaries’ residence did not allow Virginia to tax the assets while they remained in trust. “[N]obody within Virginia has present right to [the assets’] control or pos- session, or to receive income therefrom, or to cause them to be brought physically within her borders.” 280 U.S., at 4 NORTH CAROLINA DEPT. OF REVENUE v. KIMBERLEY RICE KAESTNER 1992 FAMILY TRUST ALITO, J., concurring 91.* The beneficiaries’ equitable ownership of the trust did not sufficiently connect the undistributed assets to Virginia as to allow taxation of the trust. The beneficiar- ies’ equitable ownership yielded to the “established fact of legal ownership, actual presence and control elsewhere.” Here, as in Brooke and Safe Deposit, the resident benefi- ciary has neither control nor possession of the intangible assets in the trust. She does not enjoy the use of the trust assets. The trustee administers the trust and holds the trust assets outside the State of North Carolina. Under Safe Deposit and Brooke, that is sufficient to establish that North Carolina cannot tax the trust or the trustee on the intangible assets held by the trust. * * * The Due Process Clause requires a sufficient connection between an asset and a State before the State can tax the asset. For intangible assets held in trust, our precedents dictate that a resident beneficiary’s control, possession, and ability to use or enjoy the asset are the core of the inquiry. The opinion of the Court rightly concludes that the assets in this trust and the trust’s undistributed in- come cannot be taxed by North Carolina because the resident beneficiary lacks control, possession, or enjoy- ment of the trust assets. The Court’s discussion of the peculiarities of this trust does not change the governing standard, nor does it alter the reasoning applied in our earlier cases. On that basis, I concur. —————— * Although the Court noted that no Virginian had a present right “to receive income therefrom,” Brooke—where the beneficiary was entitled to and received income from the trust—suggests that even if the chil- dren had such a right, it would not, alone, justify taxing the trust corpus

Justice Breyer

majority

Rita v. United States

2007-06-21

https://www.courtlistener.com/opinion/145708/rita-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145708/

2006-067

The federal courts of appeals review federal sentences and set aside those they find "unreasonable." See, e.g., United States v. Booker, 543 U.S. 220, 261-263, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Several Circuits have held that, when doing so, they will presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reasonable sentence. See, e.g., 177 Fed. Appx. 357, 358 (C.A.4 2006) (per curiam) (case below); see also United States Sentencing Commission, Guidelines Manual (Nov.2006) (USSG or Guidelines). The most important question before us is whether the law permits the courts of appeals to use this presumption. We hold that it does. I A The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a "PPSH 41 machinegun `parts kit,'" could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that InterOrdnance had not secured proper registrations for the importation of the guns. App. 7, 16-19, 21-22. *2460 Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. Id., at 119-120; Supp.App. 5-8. But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a machinegun. App. 23-24, 120; Supp.App. 2-5, 8-10, 13-14. The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. App. 19, 120-121; Supp.App. 11-12. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts. App. 7-13, 94, 103. B The parties subsequently proceeded to sentencing. Initially, a probation officer, with the help of the parties, and after investigating the background both of the offenses and of the offender, prepared a presentence report. See Fed. Rules Crim. Proc. 32(c)-(d); 18 U.S.C. § 3552(a). The completed report describes "offense characteristics," "offender characteristics," and other matters that might be relevant to the sentence, and then calculates a Guidelines sentence. The report also sets forth factors potentially relevant to a departure from the Guidelines or relevant to the imposition of an other-than-Guidelines sentence. It ultimately makes a sentencing recommendation based on the Guidelines. App. 115-136. In respect to "offense characteristics," for example, the report points out that the five counts of conviction all stem from a single incident. Id., at 122. Hence, pursuant to the Guidelines, the report, in calculating a recommended sentence, groups the five counts of conviction together, treating them as if they amounted to the single most serious count among them (and ignoring all others). See USSG § 3D1.1. The single most serious offense in Rita's case is "perjury." The relevant Guideline, § 2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for "perjury. . . in respect to a criminal offense" by applying the Guideline for an "accessory after the fact," as to that criminal offense. § 2X3.1. And that latter Guideline says that the judge, for calculation purposes, should take as a base offense level, a level that is "6 levels lower than the offense level for the underlying offense," (emphasis added) (the offense that the perjury may have helped someone commit). Here the "underlying offense" consisted of InterOrdnance's possible violation of the machinegun registration law. App. 124; USSG § 2M5.2 (providing sentence for violation of 22 U.S.C. § 2778(b)(2), importation of defense articles without authorization). The base offense level for the gun registration crime is 26. See USSG § 2M5.2. Six levels less is 20. And 20, says the presentence report, is the base offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 45. The presentence report next considers Rita's "Criminal History." Id., at 125. Rita was convicted in May 1986, and sentenced to five years' probation for making false statements in connection with the purchase of firearms. Because this conviction took place more than 10 years before the present offense, it did not count *2461 against Rita. And because Rita had no other relevant convictions, the Guidelines considered him as having no "criminal history points." Ibid. The report consequently places Rita in criminal history category I, the lowest category for purposes of calculating a Guidelines' sentence. The report goes on to describe other "Offender Characteristics." Id., at 126. The description includes Rita's personal and family data, Rita's physical condition (including a detailed description of ailments), Rita's mental and emotional health, the lack of any history of substance abuse, Rita's vocational and nonvocational education, and Rita's employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita's financial condition. Id., at 126-132. Ultimately, the report calculates the Guidelines sentencing range. Id., at 132. The Guidelines specify for base level 20, criminal history category I, a sentence of 33-to-41 months' imprisonment. Ibid. The report adds that there "appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines." Id., at 133. C At the sentencing hearing, both Rita and the Government presented their sentencing arguments. Each side addressed the report. Rita argued for a sentence outside (and lower than) the recommended Guidelines 33-to-41 month range. The judge made clear that Rita's argument for a lower sentence could take either of two forms. First, Rita might argue within the Guidelines' framework, for a departure from the applicable Guidelines range on the ground that his circumstances present an "atypical case" that falls outside the "heartland" to which the United States Sentencing Commission intends each individual Guideline to apply. USSG § 5K2.0(a)(2). Second, Rita might argue that, independent of the Guidelines, application of the sentencing factors set forth in 18 U.S.C. § 3553(a) (2000 ed. and Supp. IV) warrants a lower sentence. See Booker, 543 U.S., at 259-260, 125 S. Ct. 738. Thus, the judge asked Rita's counsel, "Are you going to put on evidence to show that [Rita] should be getting a downward departure, or under 3553, your client would be entitled to a different sentence than he should get under sentencing guidelines?" App. 52. And the judge later summarized: "[Y]ou're asking for a departure from the guidelines or a sentence under 3553 that is lower than the guidelines, and here are the reasons: "One, he is a vulnerable defendant because he's been involved in [government criminal justice] work which has caused people to become convicted criminals who are in prison and there may be retribution against him. "Two, his military experience. . . ." Id., at 64-65. Counsel agreed, while adding that Rita's poor physical condition constituted a third reason. And counsel said that he rested his claim for a lower sentence on "[j]ust [those] three" special circumstances, "[p]hysical condition, vulnerability in prison and the military service." Id., at 65. Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report's recommended Guidelines range, said that Rita's perjury had interfered with the Government's potential *2462 "obstruction of justice" claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury. Id., at 74-77. The sentencing judge asked questions about each factor. After hearing the arguments, the judge concluded that he was "unable to find that the [report's recommended] sentencing guideline range . . . is an inappropriate guideline range for that, and under 3553. . . the public needs to be protected if it is true, and I must accept as true the jury verdict." Id., at 87. The court concluded: "So the Court finds that it is appropriate to enter" a sentence at the bottom of the Guidelines range, namely a sentence of imprisonment "for a period of 33 months." Ibid. D On appeal, Rita argued that his 33-month sentence was "unreasonable" because (1) it did not adequately take account of "the defendant's history and characteristics," and (2) it "is greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2)." Brief for Appellant in No. 05-4674 (CA4), pp. i, 8. The Fourth Circuit observed that it must set aside a sentence that is not "reasonable." The Circuit stated that "a sentence imposed within the properly calculated Guidelines range . . . is presumptively reasonable." It added that "while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual cases, we have no reason to doubt that most sentences will continue to fall within the applicable guideline range." The Fourth Circuit then rejected Rita's arguments and upheld the sentence. Ibid. (internal quotation marks omitted). E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split as to the use of a presumption of reasonableness for within-Guidelines sentences. Compare United States v. Dorcely, 454 F.3d 366, 376 (C.A.D.C.2006) (uses presumption); United States v. Green, 436 F.3d 449, 457 (C.A.4 2006) (same); United States v. Alonzo, 435 F.3d 551, 554 (C.A.5 2006) (same); United States v. Williams, 436 F.3d 706, 708 (C.A.6 2006) (same); United States v. Mykytiuk, 415 F.3d 606, 608 (C.A.7 2005) (same); United States v. Lincoln, 413 F.3d 716, 717 (C.A.8 2005) (same); and United States v. Kristl, 437 F.3d 1050, 1053-1054 (C.A.10 2006) (per curiam) (same), with United States v. Jimenez-Beltre, 440 F.3d 514, 518 (C.A.1 2006) (en banc) (does not use presumption), United States v. Fernandez, 443 F.3d 19, 27 (C.A.2 2006) (same); United States v. Cooper, 437 F.3d 324, 331 (C.A.3 2006) (same); and United States v. Talley, 431 F.3d 784, 788 (C.A.11 2005) (per curiam) (same). We consequently granted Rita's petition. We agreed to decide whether a circuit court may afford a "presumption of reasonableness" to a "within-Guidelines" sentence. We also agreed to decide whether the District Court properly analyzed the relevant sentencing factors and whether, given the record, the District Court's ultimate choice of a 33-month sentence was "unreasonable." II The first question is whether a court of appeals may apply a presumption of reasonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can. *2463 A For one thing, the presumption is not binding. It does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuasion or proof lest they lose their case. C.f., e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50, n. 3, 124 S. Ct. 513, 157 L. Ed. 2d 357 (2003) (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge. Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion as to the proper sentence in the particular case. That double determination significantly increases the likelihood that the sentence is a reasonable one. Further, the presumption reflects the nature of the Guidelines-writing task that Congress set for the Commission and the manner in which the Commission carried out that task. In instructing both the sentencing judge and the Commission what to do, Congress referred to the basic sentencing objectives that the statute sets forth in 18 U.S.C. § 3553(a) (2000 ed. and Supp. IV). That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing, namely (a) "just punishment" (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to "impose a sentence sufficient, but not greater than necessary, to comply with" the basic aims of sentencing as set out above. Congressional statutes then tell the Commission to write Guidelines that will carry out these same § 3553(a) objectives. Thus, 28 U.S.C. § 991(b) indicates that one of the Commission's basic objectives is to "assure the meeting of the purposes of sentencing as set forth in [§ 3553(a)(2)]." The provision adds that the Commission must seek to "provide certainty and fairness" in sentencing, to "avoi[d] unwarranted sentencing disparities," to "maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices," and to "reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior." Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to § 3553(a). See 28 U.S.C. §§ 994(f), and 994(m). The upshot is that the sentencing statutes envision both the sentencing judge and the Commission as carrying out the same basic § 3553(a) objectives, the one, at retail, the other at wholesale. The Commission has made a serious, sometimes controversial, effort to carry out this mandate. The Commission, in describing its Guidelines-writing efforts, refers to these same statutory provisions. It says that it has tried to embody in the Guidelines the factors and considerations set forth in § 3553(a). The Commission's introductory statement recognizes that Congress "foresees guidelines that will *2464 further the basic purposes of criminal punishment, i.e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender." USSG § 1A.1, intro to comment., pt. A, ¶ 2 (The Statutory Mission). It adds that Congress "sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct," as well as "proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity." Ibid. (The Basic Approach). The Guidelines commentary explains how, despite considerable disagreement within the criminal justice community, the Commission has gone about writing Guidelines that it intends to embody these ends. It says, for example, that the goals of uniformity and proportionality often conflict. The commentary describes the difficulties involved in developing a practical sentencing system that sensibly reconciles the two ends. It adds that a "philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment." Some would emphasize moral culpability and "just punishment"; others would emphasize the need for "crime control." Rather than choose among differing practical and philosophical objectives, the Commission took an "empirical approach," beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the past and then modifying and adjusting past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. Id., ¶ 3, at 3. The Guidelines as written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill this statutory mandate. They also reflect the fact that different judges (and others) can differ as to how best to reconcile the disparate ends of punishment. The Commission's work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual cases may depart (either pursuant to the Guidelines or, since Booker, by imposing a non-Guidelines sentence). The judges will set forth their reasons. The Courts of Appeals will determine the reasonableness of the resulting sentence. The Commission will collect and examine the results. In doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties associations, experts in penology, and others. And it can revise the Guidelines accordingly. See generally 28 U.S.C. § 994(p) and note following § 994 (Commission should review and amend Guidelines as necessary, and Congress has power to revoke or amend Guidelines); Mistretta v. United States, 488 U.S. 361, 393-394, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989); USSG § 1B1.10(c) (listing 24 amendments promulgated in response to evolving sentencing concerns); USSG § 1A1.1, comment. The result is a set of Guidelines that seek to embody the § 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of § 3553(a)'s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community as to how best to apply general sentencing objectives, it is fair to assume that the Guidelines, insofar as *2465 practicable, reflect a rough approximation of sentences that might achieve § 3553(a)'s objectives. An individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general. Despite Justice SOUTER's fears to the contrary, post, at 2487-2488 (dissenting opinion), the courts of appeals' "reasonableness" presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable. Indeed, even the Circuits that have declined to adopt a formal presumption also recognize that a Guidelines sentence will usually be reasonable, because it reflects both the Commission's and the sentencing court's judgment as to what is an appropriate sentence for a given offender. See Fernandez, 443 F.3d, at 27; Cooper, 437 F.3d, at 331; Talley, 431 F.3d, at 788. We repeat that the presumption before us is an appellate court presumption. Given our explanation in Booker that appellate "reasonableness" review merely asks whether the trial court abused its discretion, the presumption applies only on appellate review. The sentencing judge, as a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. 18 U.S.C. § 3552(a); Fed. Rule Crim. Proc. 32. He 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). Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(C) and (i)(D); see also Burns v. United States, 501 U.S. 129, 136, 111 S. Ct. 2182, 115 L. Ed. 2d 123 (1991) (recognizing importance of notice and meaningful opportunity to be heard at sentencing). In determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. Booker, 543 U.S., at 259-260, 125 S. Ct. 738. B Rita and his supporting amici make two further arguments against use of the presumption. First, Rita points out that many individual Guidelines apply higher sentences in the presence of special facts, for example, brandishing a weapon. In many cases, the sentencing judge, not the jury, will determine the existence of those facts. A pro-Guidelines "presumption of reasonableness" will increase the likelihood that courts of appeals will affirm such sentences, thereby increasing the likelihood that sentencing judges will impose such sentences. For that reason, Rita says, the presumption raises Sixth Amendment "concerns." Brief for Petitioner 28. In our view, however, the presumption, even if it increases the likelihood that the judge, not the jury, will find "sentencing facts," does not violate the Sixth Amendment. This Court's Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to *2466 increase the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission's factual findings or recommended sentences. See Cunningham v. California, 549 U.S. ___, ___ - ___, 127 S. Ct. 856, 863-864, 166 L. Ed. 2d 856 (2007), (citing Booker, supra, at 243-244, 125 S. Ct. 738; Blakely v. Washington, 542 U.S. 296, 304-305, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); and Apprendi v. New Jersey, 530 U.S. 466, 471, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The Sixth Amendment question, the Court has said, is whether the law forbids a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede). Blakely, supra, at 303-304, 124 S. Ct. 2531 ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority" (internal quotation marks and citation omitted)); see Cunningham, supra, at ___, 127 S.Ct., at 865, 866 (discussing Blakely) ("The judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty," "[b]ecause the judge in Blakely's case could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range . . . was the relevant" maximum sentence for Sixth Amendment purposes); Booker, 543 U.S., at 244, 125 S. Ct. 738 ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt"); id., at 232, 125 S. Ct. 738 (discussing Blakely) ("We rejected the State's argument that the jury verdict was sufficient to authorize a sentence within the general 10-year sentence for class B felonies, noting that under Washington law, the judge was required to find additional facts in order to impose the greater 90-month sentence") (emphasis in original). 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. Thus, our Sixth Amendment cases do not forbid appellate court use of the presumption. Justice SCALIA concedes that the Sixth Amendment concerns he foresees are not presented by this case. Post, at 2478 (concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not "raise a multitude of constitutional problems." Clark v. Martinez, 543 U.S. 371, 380-381, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005). Similarly, Justice SCALIA agrees that we have never held that "the Sixth Amendment prohibits judges from ever finding any facts" relevant to sentencing. Post, at 2477. In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct *2467 such mistakes when they occur. Our decision in Booker recognized as much, 543 U.S., at 260-264, 125 S. Ct. 738. Booker held unconstitutional that portion of the Guidelines that made them mandatory. Id., at 233-234, 243-244, 125 S. Ct. 738. It also recognized that when district courts impose discretionary sentences, which are reviewed under normal appellate principles by courts of appeals, such a sentencing scheme will ordinarily raise no Sixth Amendment concern. Ibid; see id., at 233, 125 S. Ct. 738 (opinion for the Court by STEVENS, J.) ("Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the [federal sentencing statute] the provisions that make the Guidelines binding on district judges"). That being so, our opinion in Booker made clear that today's holding does not violate the Sixth Amendment. Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. It sought a Guidelines system that would bring about greater fairness in sentencing through increased uniformity. The fact that the presumption might help achieve these congressional goals does not provide cause for holding the presumption unlawful as long as the presumption remains constitutional. And, given our case law, we cannot conclude that the presumption itself violates the Sixth Amendment. The fact that we permit courts of appeals to adopt a presumption of reasonableness does not mean that courts may adopt a presumption of unreasonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreasonable. See Brief for United States 34-35. Several courts of appeals have also rejected a presumption of unreasonableness. See, e.g., United States v. Howard, 454 F.3d 700, 703 (C.A.7 2006); United States v. Matheny, 450 F.3d 633, 642 (C.A.6 2006); United States v. Myers, 439 F.3d 415, 417 (C.A.8 2006); United States v. Moreland, 437 F.3d 424, 433 (C.A.4 2006). However, a number of circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance. See, e.g., United States v. Smith, 445 F.3d 1, 4 (C.A.1 2006); United States v. Moreland, 437 F.3d 424, 434 (C.A.4 2006); United States v. Armendariz, 451 F.3d 352, 358 (C.A.5 2006); United States v. Davis, 458 F.3d 491, 496 (C.A.6 2006); United States v. Dean, 414 F.3d 725, 729 (C.A.7 2005); United States v. Dalton, 404 F.3d 1029, 1033 (C.A.8 2005); United States v. Bishop, 469 F.3d 896, 907 (C.A.10 2006); United States v. Crisp, 454 F.3d 1285, 1291-1292 (C.A.11 2006). We will consider that approach next Term in United States v. Gall, No. 06-7949. Second, Rita and his amici claim that use of a pro-Guidelines presumption on appeal conflicts with Congress' insistence that sentencing judges apply the factors set forth in 18 U.S.C. § 3553(a) (2000 ed., Supp. IV) (and that the resulting sentence be "sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in that statute). We have explained above, however, why we believe that, where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the case at hand, that sentence likely reflects the § 3553(a) factors (including its "not greater than necessary" requirement). See supra, at 2463. This circumstance alleviates any serious general conflict between *2468 § 3553(a) and the Guidelines, for the purposes of appellate review. And, for that reason, we find that nothing in § 3553(a) renders use of the presumption unlawful. III We next turn to the question whether the District Court properly analyzed the relevant sentencing factors. In particular, Rita argues that the court took inadequate account of § 3553(c) (2000 ed., Supp. IV), a provision that requires a sentencing judge, "at the time of sentencing," to "state in open court the reasons for its imposition of the particular sentence." In our view, given the straightforward, conceptually simple arguments before the judge, the judge's statement of reasons here, though brief, was legally sufficient. The statute does call for the judge to "state" his "reasons." And that requirement reflects sound judicial practice. Judicial decisions are reasoned decisions. Confidence in a judge's use of reason underlies the public's trust in the judicial institution. A public statement of those reasons helps provide the public with the assurance that creates that trust. That said, we cannot read the statute (or our precedent) as insisting upon a full opinion in every case. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word "granted," or "denied" on the face of a motion while relying upon context and the parties' prior arguments to make the reasons clear. The law leaves much, in this respect, to the judge's own professional judgment. In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision-making authority. See, e.g., United States v. Taylor, 487 U.S. 326, 336-337, 108 S. Ct. 2413, 101 L. Ed. 2d 297 (1988). Nonetheless, when a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3353(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical. Unless a party contests the Guidelines sentence generally under § 3553(a)—that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not generally treat certain defendant characteristics in the proper way—or argues for departure, the judge normally need say no more. Cf. § 3553(c)(2) (2000 ed., Supp. IV). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.) Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so. To our knowledge, an ordinary explanation of judicial reasons as to why the judge has, or has not, applied the Guidelines triggers no Sixth Amendment "jury trial" requirement. Cf. Booker, 543 U.S., at 233, 125 S. Ct. 738 ("For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant *2469 has no right to a jury determination of the facts that the judge deems relevant") and id., at 242, 125 S. Ct. 738 (requirement of finding, not articulation of it, creates Sixth Amendment problem). By articulating reasons, even if brief, the sentencing judge not only assures reviewing courts (and the public) that the sentencing process is a reasoned process but also helps that process evolve. The sentencing judge has access to, and greater familiarity with, the individual case and the individual defendant before him than the Commission or the appeals court. That being so, his reasoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through § 3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reasoned responses of these latter institutions to the sentencing judge's explanation should help the Guidelines constructively evolve over time, as both Congress and the Commission foresaw. See generally supra, at 2464-2465. In the present case the sentencing judge's statement of reasons was brief but legally sufficient. Rita argued for a downward departure from the 33-to-41 month Guidelines sentence on the basis of three sets of special circumstances: health, fear of retaliation in prison, and military record. See App. 40-47. He added that, in any event, these same circumstances warrant leniency beyond that contemplated by the Guidelines. The record makes clear that the sentencing judge listened to each argument. The judge considered the supporting evidence. The judge was fully aware of defendant's various physical ailments and imposed a sentence that takes them into account. The judge understood that Rita had previously worked in the immigration service where he had been involved in detecting criminal offenses. And he considered Rita's lengthy military service, including over 25 years of service, both on active duty and in the Reserve, and Rita's receipt of 35 medals, awards, and nominations. The judge then simply found these circumstances insufficient to warrant a sentence lower than the Guidelines range of 33 to 45 months. Id., at 87. He said that this range was not "inappropriate." (This, of course, is not the legal standard for imposition of sentence, but taken in context it is plain that the judge so understood.) He immediately added that he found that the 33-month sentence at the bottom of the Guidelines range was "appropriate." Ibid. He must have believed that there was not much more to say. We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evidence and argument; that (as no one before him denied) he thought the Commission in the Guidelines had determined a sentence that was proper in the minerun of roughly similar perjury cases; and that he found that Rita's personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reasoning, underlies the judge's conclusion. Where a matter is as conceptually simple as in the case at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively. IV We turn to the final question: Was the Court of Appeals, after applying its presumption, legally correct in holding that Rita's sentence (a sentence that applied, *2470 and did not depart from, the relevant sentencing Guideline) was not "unreasonable"? In our view, the Court of Appeals' conclusion was lawful. As we previously said, see Part I, supra, the crimes at issue are perjury and obstruction of justice. In essence those offenses involved the making of knowingly false, material statements under oath before a grand jury, thereby impeding its criminal investigation. The Guidelines provide for a typical such offense a base offense level of 20, 6 levels below the level provided for a simple violation of the crime being investigated (here the unlawful importation of machineguns). The offender, Rita, has no countable prior offenses and consequently falls within criminal history category I. The intersection of base offense level 20 and criminal history category I sets forth a sentencing range of imprisonment of 33 to 45 months. Rita argued at sentencing that his circumstances are special. He based this argument upon his health, his fear of retaliation, and his prior military record. His sentence explicitly takes health into account by seeking assurance that the Bureau of Prisons will provide appropriate treatment. The record makes out no special fear of retaliation, asserting only that the threat is one that any former law enforcement official might suffer. Similarly, though Rita has a lengthy and distinguished military record, he did not claim at sentencing that military service should ordinarily lead to a sentence more lenient than the sentence the Guidelines impose. Like the District Court and the Court of Appeals, we simply cannot say that Rita's special circumstances are special enough that, in light of § 3553(a), they require a sentence lower than the sentence the Guidelines provide. Finally, Rita and supporting amici here claim that the Guidelines sentence is not reasonable under § 3553(a) because it expressly declines to consider various personal characteristics of the defendant, such as physical condition, employment record, and military service, under the view that these factors are "not ordinarily relevant." USSG §§ 5H1.4, 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it. * * * For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.

The federal courts of appeals review federal sentences and set ide those they find "unreonable." See, e.g., United Several Circuits have held that, when doing so, they will presume that a sentence imposed within a properly calculated United States Sentencing Guidelines range is a reonable sentence. See, e.g., (ce below); see also United States Sentencing Commission, Guidelines Manual (USSG or Guidelines). The most important question before us is whether the law permits the courts of appeals to use this presumption. We hold that it does. A The bic crime in this ce concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury w investigating a gun company called nterOrdnance. Prosecutors believed that buyers of an nterOrdnance kit, called a "PPSH 1 machinegun `parts kit,'" could semble a machinegun from the kit, that those kits consequently amounted to machineguns, and that nterOrdnance had not secured proper registrations for the importation of the guns. App. 7, 16-19, 21-22. *260 Rita had bought a PPSH 1 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco, and Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. ; Supp.App. 5-8. But before meeting with the agent, Rita called nterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a machinegun. App. 23-2, 120; Supp.App. 2-5, 8-10, 13-1. The investigating prosecutor brought Rita before the grand jury, placed him under oath, and ked him about these matters. Rita denied that the Government agent had ked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at nterOrdnance. App. 19, 120-121; Supp.App. 11-12. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts. App. 7-13, 9, 103. B The parties subsequently proceeded to sentencing. nitially, a probation officer, with the help of the parties, and after investigating the background both of the offenses and of the offender, prepared a presentence report. See Fed. Rules Crim. Proc. 32(c)-(d); (a). The completed report describes "offense characteristics," "offender characteristics," and other matters that might be relevant to the sentence, and then calculates a Guidelines sentence. The report also sets forth factors potentially relevant to a departure from the Guidelines or relevant to the imposition of an other-than-Guidelines sentence. t ultimately makes a sentencing recommendation bed on the Guidelines. App. 115-. n respect to "offense characteristics," for example, the report points out that the five counts of conviction all stem from a single incident. Hence, pursuant to the Guidelines, the report, in calculating a recommended sentence, groups the five counts of conviction together, treating them if they amounted to the single most serious count among them (and ignoring all others). See USSG 3D1.1. The single most serious offense in Rita's ce is "perjury." The relevant Guideline, 2J1.3(c)(1), instructs the sentencing court (and the probation officer) to calculate the Guidelines sentence for "perjury. in respect to a criminal offense" by applying the Guideline for an "accessory after the fact," to that criminal offense. 2X3.1. And that latter Guideline says that the judge, for calculation purposes, should take a be offense level, a level that is "6 levels lower than the offense level for the underlying offense," (emphis added) (the offense that the perjury may have helped someone commit). Here the "underlying offense" consisted of nterOrdnance's possible violation of the machinegun registration law. App. 12; USSG 2M5.2 (providing sentence for violation of 22 U.S.C. 78(b)(2), importation of defense articles without authorization). The be offense level for the gun registration crime is 26. See USSG 2M5.2. Six levels less is 20. And 20, says the presentence report, is the be offense level applicable to Rita for purposes of Guidelines sentence calculation. App. 5. The presentence report next considers Rita's "Criminal History." Rita w convicted in May 1986, and sentenced to five years' probation for making false statements in connection with the purche of firearms. Because this conviction took place more than 10 years before the present offense, it did not count *261 against Rita. And because Rita had no other relevant convictions, the Guidelines considered him having no "criminal history points." The report consequently places Rita in criminal history category the lowest category for purposes of calculating a Guidelines' sentence. The report goes on to describe other "Offender Characteristics." The description includes Rita's personal and family data, Rita's physical condition (including a detailed description of ailments), Rita's mental and emotional health, the lack of any history of substance abuse, Rita's vocational and nonvocational education, and Rita's employment record. t states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita's financial condition. -132. Ultimately, the report calculates the Guidelines sentencing range. The Guidelines specify for be level 20, criminal history category a sentence of 33-to-1 months' imprisonment. The report adds that there "appears to be no circumstance or combination of circumstances that warrant a departure from the prescribed sentencing guidelines." C At the sentencing hearing, both Rita and the Government presented their sentencing arguments. Each side addressed the report. Rita argued for a sentence outside (and lower than) the recommended Guidelines 33-to-1 month range. The judge made clear that Rita's argument for a lower sentence could take either of two forms. First, Rita might argue within the Guidelines' framework, for a departure from the applicable Guidelines range on the ground that his circumstances present an "atypical ce" that falls outside the "heartland" to which the United States Sentencing Commission intends each individual Guideline to apply. USSG 5K2.0(a)(2). Second, Rita might argue that, independent of the Guidelines, application of the sentencing factors set forth in 18 U.S.C. 3553(a) ( ed. and Supp. V) warrants a lower sentence. See -260, Thus, the judge ked Rita's counsel, "Are you going to put on evidence to show that [Rita] should be getting a downward departure, or under 3553, your client would be entitled to a different sentence than he should get under sentencing guidelines?" App. 52. And the judge later summarized: "[Y]ou're king for a departure from the guidelines or a sentence under 3553 that is lower than the guidelines, and here are the reons: "One, he is a vulnerable defendant because he's been involved in [government criminal justice] work which h caused people to become convicted criminals who are in prison and there may be retribution against him. "Two, his military experience." Counsel agreed, while adding that Rita's poor physical condition constituted a third reon. And counsel said that he rested his claim for a lower sentence on "[j]ust [those] three" special circumstances, "[p]hysical condition, vulnerability in prison and the military service." Rita presented evidence and argument related to these three factors. The Government, while not king for a sentence higher than the report's recommended Guidelines range, said that Rita's perjury had interfered with the Government's potential *262 "obstruction of justice" claim against nterOrdnance and that Rita, a former Government criminal justice employee, should have known better than to commit perjury. The sentencing judge ked questions about each factor. After hearing the arguments, the judge concluded that he w "unable to find that the [report's recommended] sentencing guideline range is an inappropriate guideline range for that, and under 3553. the public needs to be protected if it is true, and must accept true the jury verdict." The court concluded: "So the Court finds that it is appropriate to enter" a sentence at the bottom of the Guidelines range, namely a sentence of imprisonment "for a period of 33 months." D On appeal, Rita argued that his 33-month sentence w "unreonable" because (1) it did not adequately take account of "the defendant's history and characteristics," and (2) it "is greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. 3553(a)(2)." Brief for Appellant in No. 05-67 (CA), pp. i, 8. The Fourth Circuit observed that it must set ide a sentence that is not "reonable." The Circuit stated that "a sentence imposed within the properly calculated Guidelines range is presumptively reonable." t added that "while we believe that the appropriate circumstances for imposing a sentence outside the guideline range will depend on the facts of individual ces, we have no reon to doubt that most sentences will continue to fall within the applicable guideline range." The Fourth Circuit then rejected Rita's arguments and upheld the sentence. E Rita petitioned for a writ of certiorari. He pointed out that the Circuits are split to the use of a presumption of reonableness for within-Guidelines sentences. Compare United (uses presumption); United ; United ; United ; United ; United ; and United with United (does not use presumption), United ; United ; and United We consequently granted Rita's petition. We agreed to decide whether a circuit court may afford a "presumption of reonableness" to a "within-Guidelines" sentence. We also agreed to decide whether the District Court properly analyzed the relevant sentencing factors and whether, given the record, the District Court's ultimate choice of a 33-month sentence w "unreonable." The first question is whether a court of appeals may apply a presumption of reonableness to a district court sentence that reflects a proper application of the Sentencing Guidelines. We conclude that it can. *263 A For one thing, the presumption is not binding. t does not, like a trial-related evidentiary presumption, insist that one side, or the other, shoulder a particular burden of persuion or proof lest they lose their ce. C.f., e.g., Raytheon Nor does the presumption reflect strong judicial deference of the kind that leads appeals courts to grant greater factfinding leeway to an expert agency than to a district judge. Rather, the presumption reflects the fact that, by the time an appeals court is considering a within-Guidelines sentence on review, both the sentencing judge and the Sentencing Commission will have reached the same conclusion to the proper sentence in the particular ce. That double determination significantly increes the likelihood that the sentence is a reonable one. Further, the presumption reflects the nature of the Guidelines-writing tk that Congress set for the Commission and the manner in which the Commission carried out that tk. n instructing both the sentencing judge and the Commission what to do, Congress referred to the bic sentencing objectives that the statute sets forth in 18 U.S.C. 3553(a) ( ed. and Supp. V). That provision tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the bic aims of sentencing, namely (a) "just punishment" (retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3) the sentences legally available; () the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted disparities; and (7) the need for restitution. The provision also tells the sentencing judge to "impose a sentence sufficient, but not greater than necessary, to comply with" the bic aims of sentencing set out above. Congressional statutes then tell the Commission to write Guidelines that will carry out these same 3553(a) objectives. Thus, 28 U.S.C. 991(b) indicates that one of the Commission's bic objectives is to "sure the meeting of the purposes of sentencing set forth in [ 3553(a)(2)]." The provision adds that the Commission must seek to "provide certainty and fairness" in sentencing, to "avoi[d] unwarranted sentencing disparities," to "maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices," and to "reflect, to the extent practicable [sentencing-relevant] advancement in [the] knowledge of human behavior." Later provisions specifically instruct the Commission to write the Guidelines with reference to this statement of purposes, the statement that itself refers to 3553(a). See 28 U.S.C. 99(f), and 99(m). The upshot is that the sentencing statutes envision both the sentencing judge and the Commission carrying out the same bic 3553(a) objectives, the one, at retail, the other at wholesale. The Commission h made a serious, sometimes controversial, effort to carry out this mandate. The Commission, in describing its Guidelines-writing efforts, refers to these same statutory provisions. t says that it h tried to embody in the Guidelines the factors and considerations set forth in 3553(a). The Commission's introductory statement recognizes that Congress "foresees guidelines that will *26 further the bic purposes of criminal punishment, i.e., deterring crime, incapacitating the offender, providing just punishment, and rehabilitating the offender." USSG 1A.1, intro to comment., pt. A, ¶ 2 (The Statutory Mission). t adds that Congress "sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct," well "proportionality in sentencing through a system that imposes appropriately different sentences for criminal conduct of different severity." The Guidelines commentary explains how, despite considerable disagreement within the criminal justice community, the Commission h gone about writing Guidelines that it intends to embody these ends. t says, for example, that the goals of uniformity and proportionality often conflict. The commentary describes the difficulties involved in developing a practical sentencing system that sensibly reconciles the two ends. t adds that a "philosophical problem arose when the Commission attempted to reconcile the differing perceptions of the purposes of criminal punishment." Some would emphize moral culpability and "just punishment"; others would emphize the need for "crime control." Rather than choose among differing practical and philosophical objectives, the Commission took an "empirical approach," beginning with an empirical examination of 10,000 presentence reports setting forth what judges had done in the pt and then modifying and adjusting pt practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like. at 3. The Guidelines written reflect the fact that the Sentencing Commission examined tens of thousands of sentences and worked with the help of many others in the law enforcement community over a long period of time in an effort to fulfill this statutory mandate. They also reflect the fact that different judges (and others) can differ to how best to reconcile the disparate ends of punishment. The Commission's work is ongoing. The statutes and the Guidelines themselves foresee continuous evolution helped by the sentencing courts and courts of appeals in that process. The sentencing courts, applying the Guidelines in individual ces may depart (either pursuant to the Guidelines or, since by imposing a non-Guidelines sentence). The judges will set forth their reons. The Courts of Appeals will determine the reonableness of the resulting sentence. The Commission will collect and examine the results. n doing so, it may obtain advice from prosecutors, defenders, law enforcement groups, civil liberties sociations, experts in penology, and others. And it can revise the Guidelines accordingly. See 28 U.S.C. 99(p) and note following 99 (Commission should review and amend Guidelines necessary, and Congress h power to revoke or amend Guidelines); ; USSG 1B1.10(c) (listing 2 amendments promulgated in response to evolving sentencing concerns); USSG 1A1.1, comment. The result is a set of Guidelines that seek to embody the 3553(a) considerations, both in principle and in practice. Given the difficulties of doing so, the abstract and potentially conflicting nature of 3553(a)'s general sentencing objectives, and the differences of philosophical view among those who work within the criminal justice community to how best to apply general sentencing objectives, it is fair to sume that the Guidelines, insofar *265 practicable, reflect a rough approximation of sentences that might achieve 3553(a)'s objectives. An individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general. Despite Justice SOUTER's fears to the contrary, post, at 287-288 (dissenting opinion), the courts of appeals' "reonableness" presumption, rather than having independent legal effect, simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of 3553(a) in the mine run of ces, it is probable that the sentence is reonable. ndeed, even the Circuits that have declined to adopt a formal presumption also recognize that a Guidelines sentence will usually be reonable, because it reflects both the Commission's and the sentencing court's judgment to what is an appropriate sentence for a given offender. See 3 F.3d, at ; 37 F.3d, at ; 31 F.3d, at We repeat that the presumption before us is an appellate court presumption. Given our explanation in that appellate "reonableness" review merely ks whether the trial court abused its discretion, the presumption applies only on appellate review. The sentencing judge, a matter of process, will normally begin by considering the presentence report and its interpretation of the Guidelines. (a); Fed. Rule Crim. Proc. 32. He may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because ( the Guidelines themselves foresee) the ce 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 ce warrants a different sentence regardless. See Rule 32(f). Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. See Rules 32(f), (h), (i)(C) and (i)(D); see also n determining the merits of these arguments, the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply. -260, B Rita and his supporting amici make two further arguments against use of the presumption. First, Rita points out that many individual Guidelines apply higher sentences in the presence of special facts, for example, brandishing a weapon. n many ces, the sentencing judge, not the jury, will determine the existence of those facts. A pro-Guidelines "presumption of reonableness" will incree the likelihood that courts of appeals will affirm such sentences, thereby increing the likelihood that sentencing judges will impose such sentences. For that reon, Rita says, the presumption raises Sixth Amendment "concerns." Brief for Petitioner 28. n our view, however, the presumption, even if it increes the likelihood that the judge, not the jury, will find "sentencing facts," does not violate the Sixth Amendment. This Court's Sixth Amendment ces do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to *266 incree the sentence in consequence. Nor do they prohibit the sentencing judge from taking account of the Sentencing Commission's factual findings or recommended sentences. See 1 S. Ct. 856, ; ; and ). The Sixth Amendment question, the Court h said, is whether the law forbids a judge to incree a defendant's sentence unless the judge finds facts that the jury did not find (and the offender did not concede). ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury h not found all the facts which the law makes essential to the punishment and the judge exceeds his proper authority" (internal quotation marks and citation omitted)); see at 1 S.Ct., at 865, 866 (discussing ) ("The judge could not have sentenced above the standard range without finding the additional fact of deliberate cruelty," "[b]ecause the judge in 's ce could not have imposed a sentence outside the standard range without finding an additional fact, the top of that range w the relevant" maximum sentence for Sixth Amendment purposes); ("Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reonable doubt"); (discussing ) ("We rejected the State's argument that the jury verdict w sufficient to authorize a sentence within the general 10-year sentence for cls B felonies, noting that under Whington law, the judge w required to find additional facts in order to impose the greater 90-month sentence") (emphis in original). A nonbinding appellate presumption that a Guidelines sentence is reonable 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 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. Thus, our Sixth Amendment ces do not forbid appellate court use of the presumption. Justice SCALA concedes that the Sixth Amendment concerns he foresees are not presented by this ce. Post, at 278 (concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not "raise a multitude of constitutional problems." Similarly, Justice SCALA agrees that we have never held that "the Sixth Amendment prohibits judges from ever finding any facts" relevant to sentencing. Post, at 277. n sentencing, in other are, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreonable. Circuit courts exist to correct *267 such mistakes when they occur. Our decision in recognized much, -26, held unconstitutional that portion of the Guidelines that made them mandatory. t also recognized that when district courts impose discretionary sentences, which are reviewed under normal appellate principles by courts of appeals, such a sentencing scheme will ordinarily raise no Sixth Amendment concern. bid; see (opinion for the Court by STEVENS, J.) ("ndeed, everyone agrees that the constitutional issues presented by these ces would have been avoided entirely if Congress had omitted from the [federal sentencing statute] the provisions that make the Guidelines binding on district judges"). That being so, our opinion in made clear that today's holding does not violate the Sixth Amendment. Rita may be correct that the presumption will encourage sentencing judges to impose Guidelines sentences. But we do not see how that fact could change the constitutional calculus. Congress sought to diminish unwarranted sentencing disparity. t sought a Guidelines system that would bring about greater fairness in sentencing through increed uniformity. The fact that the presumption might help achieve these congressional goals does not provide cause for holding the presumption unlawful long the presumption remains constitutional. And, given our ce law, we cannot conclude that the presumption itself violates the Sixth Amendment. The fact that we permit courts of appeals to adopt a presumption of reonableness does not mean that courts may adopt a presumption of unreonableness. Even the Government concedes that appellate courts may not presume that every variance from the advisory Guidelines is unreonable. See Brief for United States 3-35. Several courts of appeals have also rejected a presumption of unreonableness. See, e.g., United ; United ; United ; United However, a number of circuits adhere to the proposition that the strength of the justification needed to sustain an outside-Guidelines sentence varies in proportion to the degree of the variance. See, e.g., United ; United 3 ; United 51 F.3d 352, ; United 58 F.3d 91, 96 ; United 1 F.3d 725, ; United 0 F.3d 1029, ; United 69 F.3d 896, ; United 5 F.3d 1285, We will consider that approach next Term in United States v. Gall, No. 06-799. Second, Rita and his amici claim that use of a pro-Guidelines presumption on appeal conflicts with Congress' insistence that sentencing judges apply the factors set forth in 18 U.S.C. 3553(a) ( ed., Supp. V) (and that the resulting sentence be "sufficient, but not greater than necessary, to comply with the purposes" of sentencing set forth in that statute). We have explained above, however, why we believe that, where judge and Commission both determine that the Guidelines sentences is an appropriate sentence for the ce at hand, that sentence likely reflects the 3553(a) factors (including its "not greater than necessary" requirement). See at 263. This circumstance alleviates any serious general conflict between *268 3553(a) and the Guidelines, for the purposes of appellate review. And, for that reon, we find that nothing in 3553(a) renders use of the presumption unlawful. We next turn to the question whether the District Court properly analyzed the relevant sentencing factors. n particular, Rita argues that the court took inadequate account of 3553(c) ( ed., Supp. V), a provision that requires a sentencing judge, "at the time of sentencing," to "state in open court the reons for its imposition of the particular sentence." n our view, given the straightforward, conceptually simple arguments before the judge, the judge's statement of reons here, though brief, w legally sufficient. The statute does call for the judge to "state" his "reons." And that requirement reflects sound judicial practice. Judicial decisions are reoned decisions. Confidence in a judge's use of reon underlies the public's trust in the judicial institution. A public statement of those reons helps provide the public with the surance that creates that trust. That said, we cannot read the statute (or our precedent) insisting upon a full opinion in every ce. The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances. Sometimes a judicial opinion responds to every argument; sometimes it does not; sometimes a judge simply writes the word "granted," or "denied" on the face of a motion while relying upon context and the parties' prior arguments to make the reons clear. The law leaves much, in this respect, to the judge's own professional judgment. n the present context, a statement of reons is important. The sentencing judge should set forth enough to satisfy the appellate court that he h considered the parties' arguments and h a reoned bis for exercising his own legal decision-making authority. See, e.g., United 87 U.S. 326, 108 S. Ct. 213, Nonetheless, when a judge decides simply to apply the Guidelines to a particular ce, doing so will not necessarily require lengthy explanation. Circumstances may well make clear that the judge rests his decision upon the Commission's own reoning that the Guidelines sentence is a proper sentence (in terms of 3353(a) and other congressional mandates) in the typical ce, and that the judge h found that the ce before him is typical. Unless a party contests the Guidelines sentence under 3553(a)—that is argues that the Guidelines reflect an unsound judgment, or, for example, that they do not treat certain defendant characteristics in the proper way—or argues for departure, the judge normally need say no more. Cf. 3553(c)(2) ( ed., Supp. V). (Although, often at sentencing a judge will speak at length to a defendant, and this practice may indeed serve a salutary purpose.) Where the defendant or prosecutor presents nonfrivolous reons for imposing a different sentence, however, the judge will normally go further and explain why he h rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he h done so. To our knowledge, an ordinary explanation of judicial reons to why the judge h, or h not, applied the Guidelines triggers no Sixth Amendment "jury trial" requirement. Cf. 53 U.S., ("For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant *269 h no right to a jury determination of the facts that the judge deems relevant") and at 22, (requirement of finding, not articulation of it, creates Sixth Amendment problem). By articulating reons, even if brief, the sentencing judge not only sures reviewing courts (and the public) that the sentencing process is a reoned process but also helps that process evolve. The sentencing judge h access to, and greater familiarity with, the individual ce and the individual defendant before him than the Commission or the appeals court. That being so, his reoned sentencing judgment, resting upon an effort to filter the Guidelines' general advice through 3553(a)'s list of factors, can provide relevant information to both the court of appeals and ultimately the Sentencing Commission. The reoned responses of these latter institutions to the sentencing judge's explanation should help the Guidelines constructively evolve over time, both Congress and the Commission foresaw. See at 26-265. n the present ce the sentencing judge's statement of reons w brief but legally sufficient. Rita argued for a downward departure from the 33-to-1 month Guidelines sentence on the bis of three sets of special circumstances: health, fear of retaliation in prison, and military record. See App. 0-7. He added that, in any event, these same circumstances warrant leniency beyond that contemplated by the Guidelines. The record makes clear that the sentencing judge listened to each argument. The judge considered the supporting evidence. The judge w fully aware of defendant's various physical ailments and imposed a sentence that takes them into account. The judge understood that Rita had previously worked in the immigration service where he had been involved in detecting criminal offenses. And he considered Rita's lengthy military service, including over 25 years of service, both on active duty and in the Reserve, and Rita's receipt of 35 medals, awards, and nominations. The judge then simply found these circumstances insufficient to warrant a sentence lower than the Guidelines range of 33 to 5 months. He said that this range w not "inappropriate." (This, of course, is not the legal standard for imposition of sentence, but taken in context it is plain that the judge so understood.) He immediately added that he found that the 33-month sentence at the bottom of the Guidelines range w "appropriate." He must have believed that there w not much more to say. We acknowledge that the judge might have said more. He might have added explicitly that he had heard and considered the evidence and argument; that ( no one before him denied) he thought the Commission in the Guidelines had determined a sentence that w proper in the minerun of roughly similar perjury ces; and that he found that Rita's personal circumstances here were simply not different enough to warrant a different sentence. But context and the record make clear that this, or similar, reoning, underlies the judge's conclusion. Where a matter is conceptually simple in the ce at hand and the record makes clear that the sentencing judge considered the evidence and arguments, we do not believe the law requires the judge to write more extensively. V We turn to the final question: W the Court of Appeals, after applying its presumption, legally correct in holding that Rita's sentence (a sentence that applied, *270 and did not depart from, the relevant sentencing Guideline) w not "unreonable"? n our view, the Court of Appeals' conclusion w lawful. As we previously said, see Part the crimes at issue are perjury and obstruction of justice. n essence those offenses involved the making of knowingly false, material statements under oath before a grand jury, thereby impeding its criminal investigation. The Guidelines provide for a typical such offense a be offense level of 20, 6 levels below the level provided for a simple violation of the crime being investigated (here the unlawful importation of machineguns). The offender, Rita, h no countable prior offenses and consequently falls within criminal history category The intersection of be offense level 20 and criminal history category sets forth a sentencing range of imprisonment of 33 to 5 months. Rita argued at sentencing that his circumstances are special. He bed this argument upon his health, his fear of retaliation, and his prior military record. His sentence explicitly takes health into account by seeking surance that the Bureau of Prisons will provide appropriate treatment. The record makes out no special fear of retaliation, serting only that the threat is one that any former law enforcement official might suffer. Similarly, though Rita h a lengthy and distinguished military record, he did not claim at sentencing that military service should ordinarily lead to a sentence more lenient than the sentence the Guidelines impose. Like the District Court and the Court of Appeals, we simply cannot say that Rita's special circumstances are special enough that, in light of 3553(a), they require a sentence lower than the sentence the Guidelines provide. Finally, Rita and supporting amici here claim that the Guidelines sentence is not reonable under 3553(a) because it expressly declines to consider various personal characteristics of the defendant, such physical condition, employment record, and military service, under the view that these factors are "not ordinarily relevant." USSG 5H1., 5H1.5, 5H1.11. Rita did not make this argument below, and we shall not consider it. * * * For the foregoing reons, the judgment of the Court of Appeals is Affirmed.

Justice Stevens

concurring

Rita v. United States

2007-06-21

https://www.courtlistener.com/opinion/145708/rita-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145708/

2006-067

It is no secret that the Court's remedial opinion in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), was not unanimous. See id., at 272, 125 S. Ct. 738 (STEVENS, J., dissenting). But Booker is now settled law and must be accepted as such. See B. Cardozo, The Nature of the Judicial Process 149 (1921) ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him"). Therefore, our task today is to apply Booker's "reasonableness" standard to a District Judge's decision to impose a sentence within the range recommended by United States Sentencing Guidelines that are now advisory, rather than binding. I Simply stated, Booker replaced the de novo standard of review required by 18 U.S.C. § 3742(e) with an abuse-of-discretion standard that we called "`reasonableness'" *2471 review. 543 U.S., at 262, 125 S. Ct. 738. We noted in Booker that the de novo standard was a recent addition to the law. Prior to 2003, appellate courts reviewed sentencing departures for abuse of discretion under our decision in Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996). In 2003, however, Congress overruled Koon and added the de novo standard to § 3742(e). See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, § 401(d)(1), 117 Stat. 670. Recognizing that "the reasons for th[is] revisio[n]— to make Guidelines sentencing even more mandatory than it had been— ... ceased to be relevant" in light of the Court's constitutional holding,[1]Booker excised the portion of § 3742(e) that directed courts of appeals to apply the de novo standard. 543 U.S., at 261, 125 S. Ct. 738. Critically, we did not touch the portions of § 3742(e) requiring appellate courts to "give due regard to the opportunity of the district court to judge the credibility of the witnesses," to "accept the findings of fact of the district court unless they are clearly erroneous," and to "give due deference to the district court's application of the guidelines to the facts." By leaving those portions of the statute intact while severing the portion mandating a de novo standard of review, Booker restored the abuse-of-discretion standard identified in three earlier cases: Pierce v. Underwood, 487 U.S. 552, 558-560, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988), Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403-405, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990), and Koon. See Booker, 543 U.S., at 260, 125 S. Ct. 738.[2] In Pierce, we considered whether the District Court had properly awarded attorney's fees based on a determination that the Government's litigation position was not "substantially justified" within the meaning of the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Because the Act did not specify a standard of review, we found it necessary to rely on several "significant relevant factors" that persuaded us to apply an "`abuse of discretion'" standard. 487 U.S., at 559, 108 S. Ct. 2541. One factor was that a district judge was "`better positioned'" than an appellate judge to decide the issue. Id., at 560, 108 S. Ct. 2541 (quoting Miller v. Fenton, 474 U.S. 104, 114, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985)). We noted that a district court, through its participation in "settlement conferences and other pretrial activities," "may have insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon." 487 U.S., at 560, 108 S. Ct. 2541. We likewise noted that "even where the district judge's full knowledge of the factual setting can be acquired by the appellate court, that acquisition will often come at unusual expense." Ibid. A second *2472 factor that we found significant was the impracticability of formulating a rule of decision for an issue that may involve "`multifarious, fleeting, special, narrow facts that utterly resist generalization.'" Id., at 561-562, 108 S. Ct. 2541. In Cooter & Gell, we held that both of these factors supported an "abuse-of-discretion" standard for review of a district judge's imposition of sanctions for violations of Rule 11 of the Federal Rules of Civil Procedure. See 496 U.S., at 403-405, 110 S. Ct. 2447. A third factor, the District Court's special knowledge about "the local bar's litigation practices," also supported the abuse-of-discretion standard. Id., at 404, 110 S. Ct. 2447. We further noted that "[d]eference to the determination of courts on the front lines of litigation will enhance these courts' ability to control the litigants before them." Ibid. Recognizing that these factors bear equally upon a trial judge's sentencing decision, Koon expressly applied the principles of Pierce and Cooter & Gell to the sentencing context. See Koon, 518 U.S., at 99, 116 S. Ct. 2035. We adopted the same abuse-of-discretion standard, unanimously holding that a district court's decision to depart from the Guidelines "will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Id. at 98, 116 S. Ct. 2035. Echoing our earlier opinions, we added that "[d]istrict courts have an institutional advantage over appellate courts" because they "must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing." Ibid. We also relied on the following statement in our opinion in Williams v. United States, 503 U.S. 193, 112 S. Ct. 1112, 117 L. Ed. 2d 341 (1992): "The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, `it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.'" Id., at 205, 112 S. Ct. 1112 (quoting Solem v. Helm, 463 U.S. 277, 290, n. 16, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983)). These basic considerations about the nature of sentencing have not changed in a post-Booker world. While the specific holding in Koon concerned only the scope of the trial judge's discretion on whether to depart from the Guidelines, now that the Guidelines are no longer mandatory, our reasoning applies with equal force to the sentencing judge's decision "`as to the appropriateness of a particular sentence.'" Williams, 503 U.S., at 205, 112 S. Ct. 1112. After Booker, appellate courts are now to assess a district court's exercise of discretion "with regard to § 3553(a)." 543 U.S., at 261, 125 S. Ct. 738. As we explained, "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable." Ibid. Guided by these § 3553(a) factors, Booker's abuse-of-discretion standard directs appellate courts to evaluate what motivated the District Judge's individualized sentencing decision. While reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge's individualized sentencing determination. As we stated in Koon, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime *2473 and the punishment to ensue." 518 U.S., at 113, 116 S. Ct. 2035. The Commission has not developed any standards or recommendations that affect sentencing ranges for many individual characteristics. Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civic, charitable, or public service are not ordinarily considered under the Guidelines. See United States Sentencing Commission, Guidelines Manual §§ 5H1.1-6, 11, and 12 (Nov.2006).[3] These are, however, matters that § 3553(a) authorizes the sentencing judge to consider. See, e.g., 18 U.S.C. § 3553(a)(1). As such, they are factors that an appellate court must consider under Booker's abuse-of-discretion standard. My disagreement with Justice SCALIA and Justice SOUTER rests on the above understanding of Booker's standard of appellate review. I do not join Justice SCALIA's opinion because I believe that the purely procedural review he advocates is inconsistent with our remedial opinion in Booker, which plainly contemplated that reasonableness review would contain a substantive component. See 543 U.S., at 260-264, 125 S. Ct. 738. After all, a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable. Moreover, even if some future unusually harsh sentence might violate the Sixth Amendment because it exceeds some yet-to-be-defined judicial standard of reasonableness, Justice SCALIA correctly acknowledges this case does not present such a problem. See post, at 2478 (opinion concurring in part and concurring in judgment) ("Nor is my claim that the Sixth Amendment was violated in this case, for petitioner cannot demonstrate that his relatively low sentence would have been unreasonable if the District Court had relied on nothing but jury-found or admitted facts"); see also ante, at 2481-2482 ("Justice SCALIA concedes that the Sixth Amendment concerns he foresees are not presented by this case. Post, at 2487-2488 (concurring in part and concurring in judgment). And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not `raise a multitude of constitutional problems.' Clark v. Martinez, 543 U.S. 371, 380-381, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005)"). Such a hypothetical case should be decided if and when it arises. See, e.g., Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). As to Justice SOUTER's opinion, I think he overestimates the "gravitational pull" towards the advisory Guidelines that will result from a presumption of reasonableness. Post, at 2487-2488 (dissenting opinion). Booker's standard of review allows—indeed, requires—district judges to consider all of the factors listed in § 3553(a) and to apply them to the individual defendants before them. Appellate *2474 courts must then give deference to the sentencing decisions made by those judges, whether the resulting sentence is inside or outside the advisory Guidelines range, under traditional abuse-of-discretion principles. As the Court acknowledges, moreover, presumptively reasonable does not mean always reasonable; the presumption, of course, must be genuinely rebuttable. See ante, at 2462-2463. I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker. See post, at 2478, n. 3 (SCALIA, J., concurring in part and concurring in judgment). One well-respected federal judge has even written that, "after watching this Court—and the other Courts of Appeals, whether they have formally adopted such a presumption or not—affirm hundreds upon hundreds of within-Guidelines sentences, it seems to me that the rebuttability of the presumption is more theoretical than real." United States v. Pruitt, 487 F.3d 1298, 2007 WL 1589409, *11 (C.A.10 2007) (McConnell, J., concurring). Our decision today makes clear, however, that the rebuttability of the presumption is real. It should also be clear that appellate courts must review sentences individually and deferentially whether they are inside the Guidelines range (and thus potentially subject to a formal "presumption" of reasonableness) or outside that range. Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory during the post-Booker interregnum will now recognize that the Guidelines are truly advisory. Applying this standard, I would affirm the sentence imposed by the District Court. Although I would have imposed a lower sentence had I been the District Judge, I agree that he did not abuse his discretion in making the particular decision that he did. I also agree with the Court that his decision is entitled to added respect because it was consistent with the advice in the Guidelines. II That said, I do believe that there was a significant flaw in the sentencing procedure in this case. The petitioner is a veteran who received significant recognition for his service to his country. That aspect of his background is not taken into consideration in the sentencing guidelines and was not mentioned by the District Judge in his explanation of his choice of the sentence that defendant received. I regard this as a serious omission because I think the judge's statement to the defendant, made at the time of sentencing, is an especially important part of the criminal process. If the defendant is convinced that justice has been done in his case— that society has dealt with him fairly—the likelihood of his successful rehabilitation will surely be enhanced. Nevertheless, given the importance of paying appropriate respect to the exercise of a sentencing judge's discretion, I join the Court's opinion and judgment. Justice SCALIA, with whom Justice THOMAS joins, concurring in part and concurring in the judgment. In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), five Justices of this Court, I among them, held that our previous decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), applied to sentences imposed under the Federal Sentencing Guidelines because those Guidelines were mandatory and binding on judges. See 543 U.S., at 233-234, 243-244, 125 S. Ct. 738. We thus reaffirmed that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a *2475 jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Id., at 244, 125 S. Ct. 738. In response to this constitutional holding, a different majority of five Justices held that the appropriate remedy was to make the Guidelines nonmandatory in all cases and to review sentences on appeal only for reasonableness. See id., at 258-265, 125 S. Ct. 738. I disagreed with the Court's remedial choice, believing instead that the proper remedy was to maintain the mandatory character of the Guidelines and simply to require, for that small category of cases in which a fact was legally essential to the sentence imposed, that the fact be proved to a jury beyond a reasonable doubt or admitted by the defendant. See id., at 272-291, 125 S. Ct. 738 (STEVENS, J., joined by SCALIA and SOUTER, JJ., dissenting in part). I do not mean to reopen that debate. As a matter of statutory stare decisis, I accept Booker's remedial holding that district courts are no longer bound by the Guidelines and that appellate courts should review the sentences imposed for reasonableness. As should be clear from our need to decide the case today, however, precisely what "reasonableness" review entails is not dictated by Booker. As I lamented then, "[t]he worst feature of the scheme is that no one knows—and perhaps no one is meant to know—how advisory Guidelines and `unreasonableness' review will function in practice." Id., at 311, 125 S. Ct. 738 (SCALIA, J., dissenting in part). Earlier this Term, the Court intensified its silence when it declined to flesh out what it had in mind in the face of an argument that the form of reasonableness review had constitutional implications. In Cunningham v. California, 549 U.S. ___, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), Justice ALITO defended the constitutionality of California's sentencing system in part by arguing that, even post-Booker, some federal sentences will be upheld as reasonable only if the judge makes additional findings of fact beyond those encompassed by the jury verdict or guilty plea. 549 U.S., at ___, and n. 11, 127 S.Ct., at 867, and n. 11 (dissenting opinion). The Cunningham majority's response, much like the Booker remedial opinion, was cryptic. While the Court did not explain why Justice ALITO was incorrect, it strongly intimated that his premise was wrong: that he had erroneously "anticipate[d]" how "reasonableness review operates in practice." Cunningham, 549 U.S., at ___, n. 15, 127 S.Ct., at 870, n. 15. Because that question is squarely presented in this case that was then pending, the Court found it "neither necessary nor proper ... to join issue with Justice ALITO on this matter," suggesting that all would be revealed in the opinion we issue today. See id., at ___, n. 13, 127 S.Ct., at 868, n. 13. Today has arrived, and the Court has broken its promise. Nothing in the Court's opinion explains why, under the advisory Guidelines scheme, judge-found facts are never legally necessary to justify the sentence. By this I mean the Court has failed to establish that every sentence which will be imposed under the advisory Guidelines scheme could equally have been imposed had the judge relied upon no facts other than those found by the jury or admitted by the defendant. In fact, the Court implicitly, but quite plainly, acknowledges that this will not be the case, by treating as a permissible post-Booker claim petitioner's challenge of his within-Guidelines sentence as substantively excessive. See ante, at Part IV. Under the scheme promulgated today, some sentences reversed as excessive will be legally authorized in later cases only because additional judge-found facts are present; and, as Justice ALITO argued in Cunningham, *2476 some lengthy sentences will be affirmed (i.e., held lawful) only because of the presence of aggravating facts, not found by the jury, that distinguish the case from the mine-run. The Court does not even attempt to explain how this is consistent with the Sixth Amendment. No explanation is given because no explanation is possible. The Court has reintroduced the constitutional defect that Booker purported to eliminate. I cannot acquiesce in this course. If a sentencing system is permissible in which some sentences cannot lawfully be imposed by a judge unless the judge finds certain facts by a preponderance of the evidence, then we should have left in place the compulsory Guidelines that Congress enacted, instead of imposing this jerry-rigged scheme of our own. In order to avoid the possibility of a Sixth Amendment violation, which was the object of the Booker remedy, district courts must be able, without finding any facts not embraced in the jury verdict or guilty plea, to sentence to the maximum of the statutory range. Because, therefore, appellate courts cannot reverse within-range sentences for being too high; and because no one would contend that Congress intended that sentences be reviewed only for being too low; I would hold that reasonableness review cannot contain a substantive component at all. I believe, however, that appellate courts can nevertheless secure some amount of sentencing uniformity through the procedural reasonableness review made possible by the Booker remedial opinion. I A The Sixth Amendment requires that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." Booker, 543 U.S., at 244, 125 S. Ct. 738. Two hypotheticals will suffice to reveal why the notion of excessive sentences within the statutory range, and the ability of appellate courts to reverse such sentences, inexorably produces, in violation of the Sixth Amendment, sentences whose legality is premised on a judge's finding some fact (or combination of facts) by a preponderance of the evidence. First, consider two brothers with similar backgrounds and criminal histories who are convicted by a jury of respectively robbing two banks of an equal amount of money. Next assume that the district judge finds that one brother, fueled by racial animus, had targeted the first bank because it was owned and operated by minorities, whereas the other brother had selected the second bank simply because its location enabled a quick getaway. Further assume that the district judge imposes the statutory maximum upon both brothers, basing those sentences primarily upon his perception that bank robbery should be punished much more severely than the Guidelines base level advises, but explicitly noting that the racially biased decisionmaking of the first brother further justified his sentence. Now imagine that the appellate court reverses as excessive only the sentence of the nonracist brother. Given the dual holdings of the appellate court, the racist has a valid Sixth Amendment claim that his sentence was reasonable (and hence lawful) only because of the judicial finding of his motive in selecting his victim.[1] *2477 Second, consider the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts. For example, the base offense level for robbery under the Guidelines is 20, United States Sentencing Commission, Guidelines Manual § 2B3.1(a) (Nov.2006), which, if the defendant has a criminal history of I, corresponds to an advisory range of 33-41 months, id., ch. 5, pt. A, Sentencing Table. If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, §§ 2B3.1(b)(2), (3), (7), producing an advisory range of 235-293 months, id., ch. 5, pt. A, Sentencing Table. When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive. These hypotheticals are stylized ways of illustrating the basic problem with a system in which district courts lack full discretion to sentence within the statutory range. Under such a system, for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment. Appellate courts' excessiveness review will explicitly or implicitly accept those judge-found facts as justifying sentences that would otherwise be unlawful. The only difference between this system and the pre-Booker mandatory Guidelines is that the maximum sentence based on the jury verdict or guilty plea was specified under the latter but must be established by appellate courts, in case-by-case fashion, under the former. This is, if anything, an additional constitutional disease, not a constitutional cure. To be clear, I am not suggesting that the Sixth Amendment prohibits judges from ever finding any facts. We have repeatedly affirmed the proposition that judges can find facts that help guide their discretion within the sentencing range that is authorized by the facts found by the jury or admitted by the defendant. See, e.g., Booker, supra, at 233, 125 S. Ct. 738; Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). But there is a fundamental difference, one underpinning our entire Apprendi jurisprudence, between facts that must be found in order for a sentence to be lawful, and facts that individual judges choose to make relevant to the exercise of their discretion. The former, but not the latter, must be found by the jury beyond a reasonable doubt in order "to give intelligible content to the right of jury trial." Blakely, 542 U.S., at 305, 124 S. Ct. 2531.[2] *2478 I am also not contending that there is a Sixth Amendment problem with the Court's affirmation of a presumption of reasonableness for within-Guidelines sentences. I agree with the Court that such a presumption never itself makes judge-found facts legally essential to the sentence imposed, since it has no direct relevance to whether the sentence would have been unreasonable in the absence of any judge-found facts. See ante, at 2465-2467.[3] Nor is my claim that the Sixth Amendment was violated in this case, for petitioner cannot demonstrate that his relatively low sentence would have been unreasonable if the District Court had relied on nothing but jury-found or admitted facts. Rather, my position is that there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts. Booker itself reveals why that reality dooms the construct of reasonableness review established and applied by today's opinion. Booker made two things quite plain. First, reasonableness is the standard of review implicitly contained within the Sentencing Reform Act of 1984(SRA). 543 U.S., at 260-261, 125 S. Ct. 738. Second, Congress wanted a uniform system of sentencing review, rather than different schemes depending on whether there were Sixth Amendment problems in particular cases. Id., at 265-267, 125 S. Ct. 738. Thus, if the contours of reasonableness review must be narrowed in some cases because of constitutional concerns, then they must be narrowed in all cases in light of Congress's desire for a uniform standard of review. The Justices composing today's Court were in total agreement with this principle of statutory interpretation the day Booker was decided: "[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail— whether or not those constitutional problems pertain to the particular litigant before the Court." Clark v. Martinez, 543 U.S. 371, 380-381, 125 S. Ct. 716, 160 L. Ed. 2d 734 (2005) (opinion for the Court by SCALIA, J., joined by, inter alios, STEVENS, KENNEDY, GINSBURG, and BREYER, JJ.). *2479 Yet they now adopt substantive reasonableness review without offering any rebuttal to my charge of patent constitutional flaw inherent in such review. The one comfort to be found in the Court's opinion—though it does not excuse the failure to apply Martinez's interpretive principle—is that it does not rule out as-applied Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea. Ante, at 2466-2467; ante, at 2473 (STEVENS, J., joined by GINSBURG, J., concurring).[4] B Had the Court bothered to frame objections to the constitutional analysis undertaken above, there are four conceivable candidates. 1 The most simplistic objection is that the Sixth Amendment is not violated because the judge-found facts are made legally necessary by the decision of appellate courts rather than the decision of Congress. This rebuttal errs both in premise and in conclusion. The premise is wrong because, according to the remedial majority in Booker, the facts that excessiveness review renders legally essential are made such by Congress. Reasonableness is the standard of review implicitly contained within 18 U.S.C. § 3742 (2000 ed. and Supp. IV). See Booker, supra, at 260-261, 125 S. Ct. 738. But the Sixth Amendment would be violated even if appellate courts really were exercising some type of common-law power to prescribe the facts legally necessary to support specific sentences. Neither Apprendi nor any of its progeny suggests that violation of the Sixth Amendment depends upon what branch of government has made the prescription. To the contrary, Booker flatly rejected the argument that the mandatory Guidelines were constitutional because it was the Sentencing Commission rather than Congress that specified the facts essential to punishment. See 543 U.S., at 237-239, 125 S. Ct. 738. And for good reason. The Sixth Amendment is "a reservation of jury power." Blakely, 542 U.S., at 308, 124 S. Ct. 2531. It makes no difference whether it is a legislature, a Sentencing Commission, or an appellate court that usurps the jury's prerogative. Were it otherwise, this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that Booker invalidated. And the California Supreme Court could effectively reverse our decision in Cunningham simply by setting aside as unreasonable any trial-court sentence that does not conform to pre-Cunningham California law. 2 The next objection minimizes the extent to which excessiveness review makes judge-found facts legally essential to punishment. If appellate courts will uphold, based only on the facts found by the jury, *2480 a district court's decision to impose all but the lengthiest sentences, then the number of sentences that are legally dependent on judge-found facts will be quite small. Thus, the argument goes, there is no reason to prohibit substantive reasonableness review altogether: Absent a claim that such review creates a constitutional problem in a given case, why prohibit it? I have already explained why this line of defense is inconsistent with established principles of statutory interpretation. See supra, at 2462-2464. But even on its own terms, the defense is inconsistent with Booker because reasonableness review is an improper and inadequate remedial scheme unless it ensures that judge-found facts are never legally necessary to justify the sentence imposed under the advisory Guidelines. The mandatory Guidelines system that was invalidated in Booker had the same attribute of producing unconstitutional results in only a small proportion of cases. Because of guilty pleas and Guidelines ranges that did not depend on judge-found facts, the overwhelming majority of sentences imposed under the pre-Booker federal system were perfectly in accord with the Sixth Amendment. See Booker, 543 U.S., at 248, 125 S. Ct. 738; id., at 275-277, 125 S. Ct. 738 (STEVENS, J., dissenting in part). Booker nevertheless excised key statutory provisions governing federal sentencing, in order to eliminate constitutional violations entirely. If our conjured-up system does not accomplish that goal, then by what right have we supplanted the congressionally enacted mandatory Guidelines? If it is true that some sentences under today's Court-prescribed system will still violate the Sixth Amendment, nonetheless allowing the system to go forward will produce chaos. Most cases do not resemble my stylized hypotheticals, and ordinarily defendants and judges will be unable to figure out, based on a comparison of the facts in their case with the facts of all of the previously decided appellate cases, whether the sentence imposed would have been upheld as reasonable based only on the facts supporting the jury verdict or guilty plea. That will not stop defendants from making the argument, however, and the Court certainly has not foreclosed them from trying. See supra, at 2463-2464, and n. 4. Judges will have in theory two options: create complicated charts and databases, based on appellate precedents, to ascertain what facts are legally essential to justify what sentences; or turn a deaf ear to these claims, though knowing full well that some of them are justified. I bet on the latter.[5] Things were better under the mandatory Guidelines system, where every judge could readily identify when the Sixth Amendment was being violated, and could rule accordingly. 3 Proponents of substantive reasonableness review could next argue that actual sentencing involves the consideration of dozens of different facts in order to make an individualized determination about each defendant. In the real world, they would contend, it is difficult, if not impossible, to *2481 determine whether any given fact was legally essential to the punishment imposed. But identifying the particular fatal fact is not necessary to identifying a constitutional violation. In the second hypothetical given above, for example, it is not possible to say which single fact, or which combination of facts, sufficed to bring the sentence within the bounds of the "reasonable." But it is possible to say (indeed, it must be said) that some judge-found fact or combination of facts had that effect—and that suffices to establish a Sixth Amendment violation. "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact ..., one of several specified facts ..., or any aggravating fact ..., it remains the case that the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." Blakely, supra, at 305, 124 S. Ct. 2531 4 The last conceivable defense of the Guidelines-light would be to wrap them in the mantle of history and tradition. "[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down. Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of [constitutional] adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed." Rutan v. Republican Party of Ill., 497 U.S. 62, 95-96, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990) (SCALIA, J., dissenting) (footnote omitted). This consideration has no application here. In the federal system, prior to the SRA, substantive appellate review of a district court's sentencing discretion essentially did not exist. See, e.g., Dorszynski v. United States, 418 U.S. 424, 431, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974) (noting "the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end"); id., at 443, 94 S. Ct. 3042 ("[W]ell-established doctrine bars review of the exercise of sentencing discretion"). As for state appellate review of sentences, as late as 1962, at least 39 States did not permit appellate courts to modify sentences imposed within the statutory limits. See Appellate Review of Sentences, A Symposium at the Judicial Conference of the United States Court of Appeals for the Second Circuit, 32 F.R.D. 249, 260 (1962). It would be an exaggeration to say that history reflects an established understanding that appellate review of excessive sentences conflicts with the Sixth Amendment. But it would also be an exaggeration to say that the historical pedigree of substantive appellate review of sentencing is so strong and clear as to overcome the basic principle underlying the jury-trial right applied by this Court in Apprendi, Blakely, Booker, and Cunningham. C A final defense of substantive reasonableness review would be to invoke the intent of Congress or of the Booker remedial opinion. As for congressional intent: Of course Congress intended that judge-found facts be legally essential to the punishment imposed; that was the whole reason the mandatory Guidelines violated the Sixth Amendment. If we are now to indulge a newfound respect for unconstitutional *2482 congressional intent, we should reimpose the mandatory Guidelines system. The quasi-Guidelines system the Court creates today manages to contravene both congressional intent and the Sixth Amendment. As for the "intent" of the Booker remedial opinion: That opinion purported to be divining congressional intent in light of what the Sixth Amendment compelled. See 543 U.S., at 263-265, 125 S. Ct. 738. Absent some explanation of why substantive reasonableness review does not cause judge-found facts to justify greater punishment than the jury's verdict or the defendant's guilty plea would sustain, I fail to understand how such review could possibly have been intended by all five Justices who composed the Booker remedial majority. After all, at least one of them did not intend "to override Blakely, and to render academic the entire first part of Booker itself," and has confirmed that "[t]here would have been no majority in Booker for the revision of Blakely essayed in [Justice ALITO's Cunningham] dissent." Cunningham, 549 U.S., at ___, n. 15, 127 S.Ct., at 870, n. 15 (opinion for the Court by GINSBURG, J.). II Abandoning substantive reasonableness review does not require a return to the pre-SRA regime that the Booker remedial opinion sought to avoid. See 543 U.S., at 263-265, 125 S. Ct. 738. As I said at the outset, I believe it is possible to give some effect to the Booker remedial opinion and the purposes that it sought to serve while still avoiding the constitutional defect identified in the Booker merits opinion. Specifically, I would limit reasonableness review to the sentencing procedures mandated by statute. A A central feature of the Booker remedial opinion was its conclusion that the SRA was not completely inseverable. See id., at 258-265, 125 S. Ct. 738. As a result, the Sentencing Commission "remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly." Id., at 264, 125 S. Ct. 738. Likewise, sentencing courts remain obligated to consider the various factors delineated in 18 U.S.C. § 3553(a) (2000 ed., Supp. IV), including the nowadvisory Guidelines range. 543 U.S., at 259-260, 125 S. Ct. 738. And they are still instructed by that subsection to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [that] subsection." Significantly, § 3553(c) (2000 ed. and Supp. IV) continues to require that district courts give reasons for their sentencing decisions, a requirement the requisite detail of which depends on whether the sentence is: (1) within the advisory Guidelines range; (2) within an advisory Guidelines range that spans more than 24 months; or (3) outside the advisory Guidelines range. These explanations, in turn, help the Commission revise the advisory Guidelines to reflect actual sentencing practices consistent with the statutory goals. See Booker, supra, at 264, 125 S. Ct. 738 (citing 28 U.S.C. § 994 (2000 ed. and Supp. IV)). Booker's retention of these statutory procedural provisions furthered the congressional purpose of "iron[ing] out sentencing differences," 543 U.S., at 263, 125 S. Ct. 738, and "avoid[ing] excessive sentencing disparities," id., at 264, 125 S. Ct. 738. It is important that appellate courts police their observance. Booker excised the provision of the SRA containing the standards for appellate review, see id., at 260, 125 S. Ct. 738 (invalidating 18 U.S.C. *2483 § 3742(e) (2000 ed. and Supp. IV)), but the remedial majority's creation of reasonableness review gave appellate courts the necessary means to reverse a district court that: appears not to have considered § 3553(a); considers impermissible factors; selects a sentence based on clearly erroneous facts; or does not comply with § 3553(c)'s requirement for a statement of reasons.[6] In addition to its direct effect on sentencing uniformity, this procedural review will indirectly produce, over time, reduction of sentencing disparities. By ensuring that district courts give reasons for their sentences, and more specific reasons when they decline to follow the advisory Guidelines range, see § 3553(c)(2) (2000 ed., Supp. IV), appellate courts will enable the Sentencing Commission to perform its function of revising the Guidelines to reflect the desirable sentencing practices of the district courts. See Booker, supra, at 264, 125 S. Ct. 738 (citing 28 U.S.C. § 994 (2000 ed. and Supp. IV)). And as that occurs, district courts will have less reason to depart from the Commission's recommendations, leading to more sentencing uniformity.[7] One possible objection to procedural review that the Booker remedial opinion appears not to have considered is 18 U.S.C. § 3742(f) (2000 ed., Supp. IV), which limits appellate courts to reversing sentences that are imposed "in violation of law" or "as a result of an incorrect application of the sentencing guidelines," § 3742(f)(1), or that fall in certain categories and are either "too high" or "too low," § 3742(f)(2).[8] But, as I noted in Booker, § 3742(e) and § 3742(f) are inextricably intertwined: Having excised § 3742(e)'s provisions setting forth the standards for appellate review, it is nonsensical to continue to apply § 3742(f)'s provisions governing the "Decision and Disposition" of appeals, which clearly track those now-excised standards. See 543 U.S., at 306-307, 125 S. Ct. 738 (SCALIA, J., dissenting in part). I would hold that § 3742(f) is "incapable of functioning independently" of the provisions excised in Booker, and is thus inseverable from them. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476, 94 *2484 L.Ed.2d 661 (1987); 2 N. Singer, Sutherland Statutes and Statutory Construction § 44:4, p. 576 (6th ed. 2001) ("Even where part of an act is independent and valid, other parts which are not themselves substantively invalid but have no separate function to perform independent of the invalid portions of the act are also held invalid"). B Applying procedural review in this case does not require much further discussion on my part. I join Part III of the Court's opinion. See ante, at 2468-2469. * * * The Court's decision today leaves unexplained why the mandatory Guidelines were unconstitutional, but the Court-created substantive-review system that contains the same potential for Sixth Amendment violation is not. It is irresponsible to leave this patent inconsistency hanging in the air, threatening in the future yet another major revision of Guidelines practices to which the district courts and courts of appeals will have to adjust. Procedural review would lay the matter to rest, comporting with both parts of the Booker opinion and achieving the maximum degree of sentencing uniformity on the basis of judge-found facts that the Constitution permits.

It is no secret that the Court's remedial opinion in United was not unanimous See (STEVENS, J, dissenting) But is now settled law and must be accepted as such See B Cardozo, The Nature of the Judicial Process 149 (1921) ("[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him") Therefore, our task today is to apply 's "reasonableness" standard to a District Judge's decision to impose a sentence within the range recommended by United States Sentencing Guidelines that are now advisory, rather than binding I Simply stated, replaced the de novo standard of review required by (e) with an abuse-of-discretion standard that we called "`reasonableness'" *2471 In 2003, however, Congress overruled and added the de novo standard to 3742(e) See Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 401(d)(1), Recognizing that "the reasons for th[is] revisio[n]— to make Guidelines sentencing even more mandatory than it had been— ceased to be relevant" in light of the Court's constitutional holding,[1] excised the portion of 3742(e) that directed courts of appeals to apply the de novo Critically, we did not touch the portions of 3742(e) requiring appellate courts to "give due regard to the opportunity of the district court to judge the credibility of the witnesses," to "accept the findings of fact of the district court unless they are clearly erroneous," and to "give due deference to the district court's application of the guidelines to the facts" By leaving those portions of the statute intact while severing the portion mandating a de novo standard of review, restored the abuse-of-discretion standard identified in three earlier cases: Cooter & and See [2] In Pierce, we considered whether the District Court had properly awarded attorney's fees based on a determination that the Government's litigation position was not "substantially justified" within the meaning of the Equal Access to Justice Act, 28 USC 2412(d) Because the Act did not specify a standard of review, we found it necessary to rely on several "significant relevant factors" that persuaded us to apply an "`abuse of discretion'" One factor was that a district judge was "`better positioned'" than an appellate judge to decide the issue ) We noted that a district court, through its participation in "settlement conferences and other pretrial activities," "may have insights not conveyed by the record, into such matters as whether particular evidence was worthy of being relied upon" 487 US, We likewise noted that "even where the district judge's full knowledge of the factual setting can be acquired by the appellate court, that acquisition will often come at unusual expense" A second *2 factor that we found significant was the impracticability of formulating a rule of decision for an issue that may involve "`multifarious, fleeting, special, narrow facts that utterly resist generalization'" In Cooter & Gell, we held that both of these factors supported an "abuse-of-discretion" standard for review of a district judge's imposition of sanctions for violations of Rule of the Federal Rules of Civil Procedure See 496 US, at A third factor, the District Court's special knowledge about "the local bar's litigation practices," also supported the abuse-of-discretion We further noted that "[d]eference to the determination of courts on the front lines of litigation will enhance these courts' ability to control the litigants before them" Recognizing that these factors bear equally upon a trial judge's sentencing decision, expressly applied the principles of Pierce and Cooter & Gell to the sentencing context See We adopted the same abuse-of-discretion standard, unanimously holding that a district court's decision to depart from the Guidelines "will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court" Echoing our earlier opinions, we added that "[d]istrict courts have an institutional advantage over appellate courts" because they "must make a refined assessment of the many facts bearing on the outcome, informed by its vantage point and day-to-day experience in criminal sentencing" We also relied on the following statement in our opinion in : "The development of the guideline sentencing regime has not changed our view that, except to the extent specifically directed by statute, `it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence'" ) These basic considerations about the nature of sentencing have not changed in a post- world While the specific holding in concerned only the scope of the trial judge's discretion on whether to depart from the Guidelines, now that the Guidelines are no longer mandatory, our reasoning applies with equal force to the sentencing judge's decision "`as to the appropriateness of a particular sentence'" Williams, 503 US, After appellate courts are now to assess a district court's exercise of discretion "with regard to 3553(a)" As we explained, "Section 3553(a) remains in effect, and sets forth numerous factors that guide sentencing Those factors in turn will guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable" Guided by these 3553(a) factors, 's abuse-of-discretion standard directs appellate courts to evaluate what motivated the District Judge's individualized sentencing decision While reviewing courts may presume that a sentence within the advisory Guidelines is reasonable, appellate judges must still always defer to the sentencing judge's individualized sentencing determination As we stated in "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime *2473 and the punishment to ensue" The Commission has not developed any standards or recommendations that affect sentencing ranges for many individual characteristics Matters such as age, education, mental or emotional condition, medical condition (including drug or alcohol addiction), employment history, lack of guidance as a youth, family ties, or military, civic, charitable, or public service are not ordinarily considered under the Guidelines See United States Sentencing Commission, Guidelines Manual 5H11-6, and 12 (Nov2006)[3] These are, however, matters that 3553(a) authorizes the sentencing judge to consider See, eg, 18 USC 3553(a)(1) As such, they are factors that an appellate court must consider under 's abuse-of-discretion My disagreement with Justice SCALIA and Justice SOUTER rests on the above understanding of 's standard of appellate I do not join Justice SCALIA's opinion because I believe that the purely procedural review he advocates is inconsistent with our remedial opinion in which plainly contemplated that reasonableness review would contain a substantive component See -264, After all, a district judge who gives harsh sentences to Yankees fans and lenient sentences to Red Sox fans would not be acting reasonably even if her procedural rulings were impeccable Moreover, even if some future unusually harsh sentence might violate the Sixth Amendment because it exceeds some yet-to-be-defined judicial standard of reasonableness, Justice SCALIA correctly acknowledges this case does not present such a problem See post, at 2478 (opinion concurring in part and concurring in judgment) ("Nor is my claim that the Sixth Amendment was violated in this case, for petitioner cannot demonstrate that his relatively low sentence would have been unreasonable if the District Court had relied on nothing but jury-found or admitted facts"); see also ante, at 2-2482 ("Justice SCALIA concedes that the Sixth Amendment concerns he foresees are not presented by this case Post, at 2487-2488 (concurring in part and concurring in judgment) And his need to rely on hypotheticals to make his point is consistent with our view that the approach adopted here will not `raise a multitude of constitutional problems' ") Such a hypothetical case should be decided if and when it arises See, eg, Valley Forge Christian As to Justice SOUTER's opinion, I think he overestimates the "gravitational pull" towards the advisory Guidelines that will result from a presumption of reasonableness Post, at 2487-2488 (dissenting opinion) 's standard of review allows—indeed, requires—district judges to consider all of the factors listed in 3553(a) and to apply them to the individual defendants before them Appellate *2474 courts must then give deference to the sentencing decisions made by those judges, whether the resulting sentence is inside or outside the advisory Guidelines range, under traditional abuse-of-discretion principles As the Court acknowledges, moreover, presumptively reasonable does not mean always reasonable; the presumption, of course, must be genuinely rebuttable See ante, at 2462-2463 I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in See post, at 2478, n 3 (SCALIA, J, concurring in part and concurring in judgment) One well-respected federal judge has even written that, "after watching this Court—and the other Courts of Appeals, whether they have formally adopted such a presumption or not—affirm hundreds upon hundreds of within-Guidelines sentences, it seems to me that the rebuttability of the presumption is more theoretical than real" United WL 1589409, Our decision today makes clear, however, that the rebuttability of the presumption is real It should also be clear that appellate courts must review sentences individually and deferentially whether they are inside the Guidelines range (and thus potentially subject to a formal "presumption" of reasonableness) or outside that range Given the clarity of our holding, I trust that those judges who had treated the Guidelines as virtually mandatory during the post- interregnum will now recognize that the Guidelines are truly advisory Applying this standard, I would affirm the sentence imposed by the District Court Although I would have imposed a lower sentence had I been the District Judge, I agree that he did not abuse his discretion in making the particular decision that he did I also agree with the Court that his decision is entitled to added respect because it was consistent with the advice in the Guidelines II That said, I do believe that there was a significant flaw in the sentencing procedure in this case The petitioner is a veteran who received significant recognition for his service to his country That aspect of his background is not taken into consideration in the sentencing guidelines and was not mentioned by the District Judge in his explanation of his choice of the sentence that defendant received I regard this as a serious omission because I think the judge's statement to the defendant, made at the time of sentencing, is an especially important part of the criminal process If the defendant is convinced that justice has been done in his case— that society has dealt with him fairly—the likelihood of his successful rehabilitation will surely be enhanced Nevertheless, given the importance of paying appropriate respect to the exercise of a sentencing judge's discretion, I join the Court's opinion and judgment Justice SCALIA, with whom Justice THOMAS joins, concurring in part and concurring in the judgment In United five Justices of this Court, I among them, held that our previous decision in applied to sentences imposed under the Federal Sentencing Guidelines because those Guidelines were mandatory and binding on judges See -234, 243-244, We thus reaffirmed that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a *2475 jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" In response to this constitutional holding, a different majority of five Justices held that the appropriate remedy was to make the Guidelines nonmandatory in all cases and to review sentences on appeal only for reasonableness See I disagreed with the Court's remedial choice, believing instead that the proper remedy was to maintain the mandatory character of the Guidelines and simply to require, for that small category of cases in which a fact was legally essential to the sentence imposed, that the fact be proved to a jury beyond a reasonable doubt or admitted by the defendant See -291, (STEVENS, J, joined by SCALIA and SOUTER, JJ, dissenting in part) I do not mean to reopen that debate As a matter of statutory stare decisis, I accept 's remedial holding that district courts are no longer bound by the Guidelines and that appellate courts should review the sentences imposed for reasonableness As should be clear from our need to decide the case today, however, precisely what "reasonableness" review entails is not dictated by As I lamented then, "[t]he worst feature of the scheme is that no one knows—and perhaps no one is meant to know—how advisory Guidelines and `unreasonableness' review will function in practice" (SCALIA, J, dissenting in part) Earlier this Term, the Court intensified its silence when it declined to flesh out what it had in mind in the face of an argument that the form of reasonableness review had constitutional implications In Justice ALITO defended the constitutionality of California's sentencing system in part by arguing that, even post-, some federal sentences will be upheld as reasonable only if the judge makes additional findings of fact beyond those encompassed by the jury verdict or guilty plea 549 US, at and n and n (dissenting opinion) The Cunningham majority's response, much like the remedial opinion, was cryptic While the Court did not explain why Justice ALITO was incorrect, it strongly intimated that his premise was wrong: that he had erroneously "anticipate[d]" how "reasonableness review operates in practice" Cunningham, 549 US, at n 15, n 15 Because that question is squarely presented in this case that was then pending, the Court found it "neither necessary nor proper to join issue with Justice ALITO on this matter," suggesting that all would be revealed in the opinion we issue today See at n n Today has arrived, and the Court has broken its promise Nothing in the Court's opinion explains why, under the advisory Guidelines scheme, judge-found facts are never legally necessary to justify the sentence By this I mean the Court has failed to establish that every sentence which will be imposed under the advisory Guidelines scheme could equally have been imposed had the judge relied upon no facts other than those found by the jury or admitted by the defendant In fact, the Court implicitly, but quite plainly, acknowledges that this will not be the case, by treating as a permissible post- claim petitioner's challenge of his within-Guidelines sentence as substantively excessive See ante, at Part IV Under the scheme promulgated today, some sentences reversed as excessive will be legally authorized in later cases only because additional judge-found facts are present; and, as Justice ALITO argued in Cunningham, *2476 some lengthy sentences will be affirmed (ie, held lawful) only because of the presence of aggravating facts, not found by the jury, that distinguish the case from the mine-run The Court does not even attempt to explain how this is consistent with the Sixth Amendment No explanation is given because no explanation is possible The Court has reintroduced the constitutional defect that purported to eliminate I cannot acquiesce in this course If a sentencing system is permissible in which some sentences cannot lawfully be imposed by a judge unless the judge finds certain facts by a preponderance of the evidence, then we should have left in place the compulsory Guidelines that Congress enacted, instead of imposing this jerry-rigged scheme of our own In order to avoid the possibility of a Sixth Amendment violation, which was the object of the remedy, district courts must be able, without finding any facts not embraced in the jury verdict or guilty plea, to sentence to the maximum of the statutory range Because, therefore, appellate courts cannot reverse within-range sentences for being too high; and because no one would contend that Congress intended that sentences be reviewed only for being too low; I would hold that reasonableness review cannot contain a substantive component at all I believe, however, that appellate courts can nevertheless secure some amount of sentencing uniformity through the procedural reasonableness review made possible by the remedial opinion I A The Sixth Amendment requires that "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" 543 US, Two hypotheticals will suffice to reveal why the notion of excessive sentences within the statutory range, and the ability of appellate courts to reverse such sentences, inexorably produces, in violation of the Sixth Amendment, sentences whose legality is premised on a judge's finding some fact (or combination of facts) by a preponderance of the evidence First, consider two brothers with similar backgrounds and criminal histories who are convicted by a jury of respectively robbing two banks of an equal amount of money Next assume that the district judge finds that one brother, fueled by racial animus, had targeted the first bank because it was owned and operated by minorities, whereas the other brother had selected the second bank simply because its location enabled a quick getaway Further assume that the district judge imposes the statutory maximum upon both brothers, basing those sentences primarily upon his perception that bank robbery should be punished much more severely than the Guidelines base level advises, but explicitly noting that the racially biased decisionmaking of the first brother further justified his sentence Now imagine that the appellate court reverses as excessive only the sentence of the nonracist brother Given the dual holdings of the appellate court, the racist has a valid Sixth Amendment claim that his sentence was reasonable (and hence lawful) only because of the judicial finding of his motive in selecting his victim[1] *2477 Second, consider the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts For example, the base offense level for robbery under the Guidelines is 20, United States Sentencing Commission, Guidelines Manual 2B31(a) (Nov2006), which, if the defendant has a criminal history of I, corresponds to an advisory range of 33-41 months, ch 5, pt A, Sentencing Table If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, 2B31(b)(2), (3), (7), producing an advisory range of 235-293 months, ch 5, pt A, Sentencing Table When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence His failure to find them would render the 293-month sentence unlawful That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive These hypotheticals are stylized ways of illustrating the basic problem with a system in which district courts lack full discretion to sentence within the statutory range Under such a system, for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment Appellate courts' excessiveness review will explicitly or implicitly accept those judge-found facts as justifying sentences that would otherwise be unlawful The only difference between this system and the pre- mandatory Guidelines is that the maximum sentence based on the jury verdict or guilty plea was specified under the latter but must be established by appellate courts, in case-by-case fashion, under the former This is, if anything, an additional constitutional disease, not a constitutional cure To be clear, I am not suggesting that the Sixth Amendment prohibits judges from ever finding any facts We have repeatedly affirmed the proposition that judges can find facts that help guide their discretion within the sentencing range that is authorized by the facts found by the jury or admitted by the defendant See, eg, But there is a fundamental difference, one underpinning our entire Apprendi jurisprudence, between facts that must be found in order for a sentence to be lawful, and facts that individual judges choose to make relevant to the exercise of their discretion The former, but not the latter, must be found by the jury beyond a reasonable doubt in order "to give intelligible content to the right of jury trial" [2] *2478 I am also not contending that there is a Sixth Amendment problem with the Court's affirmation of a presumption of reasonableness for within-Guidelines sentences I agree with the Court that such a presumption never itself makes judge-found facts legally essential to the sentence imposed, since it has no direct relevance to whether the sentence would have been unreasonable in the absence of any judge-found facts See ante, at 2465-2467[3] Nor is my claim that the Sixth Amendment was violated in this case, for petitioner cannot demonstrate that his relatively low sentence would have been unreasonable if the District Court had relied on nothing but jury-found or admitted facts Rather, my position is that there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts itself reveals why that reality dooms the construct of reasonableness review established and applied by today's opinion made two things quite plain First, reasonableness is the standard of review implicitly contained within the Sentencing Reform Act of 1984(SRA) -261, Second, Congress wanted a uniform system of sentencing review, rather than different schemes depending on whether there were Sixth Amendment problems in particular cases Thus, if the contours of reasonableness review must be narrowed in some cases because of constitutional concerns, then they must be narrowed in all cases in light of Congress's desire for a uniform standard of The Justices composing today's Court were in total agreement with this principle of statutory interpretation the day was decided: "[W]hen deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice If one of them would raise a multitude of constitutional problems, the other should prevail— whether or not those constitutional problems pertain to the particular litigant before the Court" (opinion for the Court by SCALIA, J, joined by, inter alios, STEVENS, KENNEDY, GINSBURG, and BREYER, JJ) *2479 Yet they now adopt substantive reasonableness review without offering any rebuttal to my charge of patent constitutional flaw inherent in such The one comfort to be found in the Court's opinion—though it does not excuse the failure to apply Martinez's interpretive principle—is that it does not rule out as-applied Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea Ante, at 2466-2467; ante, at 2473 (STEVENS, J, joined by GINSBURG, J, concurring)[4] B Had the Court bothered to frame objections to the constitutional analysis undertaken above, there are four conceivable candidates 1 The most simplistic objection is that the Sixth Amendment is not violated because the judge-found facts are made legally necessary by the decision of appellate courts rather than the decision of Congress This rebuttal errs both in premise and in conclusion The premise is wrong because, according to the remedial majority in the facts that excessiveness review renders legally essential are made such by Congress Reasonableness is the standard of review implicitly contained within ( ed and Supp IV) See But the Sixth Amendment would be violated even if appellate courts really were exercising some type of common-law power to prescribe the facts legally necessary to support specific sentences Neither Apprendi nor any of its progeny suggests that violation of the Sixth Amendment depends upon what branch of government has made the prescription To the contrary, flatly rejected the argument that the mandatory Guidelines were constitutional because it was the Sentencing Commission rather than Congress that specified the facts essential to punishment See 543 US, at 237-239, And for good reason The Sixth Amendment is "a reservation of jury power" 542 US, at 308, It makes no difference whether it is a legislature, a Sentencing Commission, or an appellate court that usurps the jury's prerogative Were it otherwise, this Court could prescribe that the only reasonable sentences are those consistent with the same mandatory Guidelines that invalidated And the California Supreme Court could effectively reverse our decision in Cunningham simply by setting aside as unreasonable any trial-court sentence that does not conform to pre-Cunningham California law 2 The next objection minimizes the extent to which excessiveness review makes judge-found facts legally essential to punishment If appellate courts will uphold, based only on the facts found by the jury, *2480 a district court's decision to impose all but the lengthiest sentences, then the number of sentences that are legally dependent on judge-found facts will be quite small Thus, the argument goes, there is no reason to prohibit substantive reasonableness review altogether: Absent a claim that such review creates a constitutional problem in a given case, why prohibit it? I have already explained why this line of defense is inconsistent with established principles of statutory interpretation See But even on its own terms, the defense is inconsistent with because reasonableness review is an improper and inadequate remedial scheme unless it ensures that judge-found facts are never legally necessary to justify the sentence imposed under the advisory Guidelines The mandatory Guidelines system that was invalidated in had the same attribute of producing unconstitutional results in only a small proportion of cases Because of guilty pleas and Guidelines ranges that did not depend on judge-found facts, the overwhelming majority of sentences imposed under the pre- federal system were perfectly in accord with the Sixth Amendment See 543 US, at 248, ; (STEVENS, J, dissenting in part) nevertheless excised key statutory provisions governing federal sentencing, in order to eliminate constitutional violations entirely If our conjured-up system does not accomplish that goal, then by what right have we supplanted the congressionally enacted mandatory Guidelines? If it is true that some sentences under today's Court-prescribed system will still violate the Sixth Amendment, nonetheless allowing the system to go forward will produce chaos Most cases do not resemble my stylized hypotheticals, and ordinarily defendants and judges will be unable to figure out, based on a comparison of the facts in their case with the facts of all of the previously decided appellate cases, whether the sentence imposed would have been upheld as reasonable based only on the facts supporting the jury verdict or guilty plea That will not stop defendants from making the argument, however, and the Court certainly has not foreclosed them from trying See and n 4 Judges will have in theory two options: create complicated charts and databases, based on appellate precedents, to ascertain what facts are legally essential to justify what sentences; or turn a deaf ear to these claims, though knowing full well that some of them are justified I bet on the latter[5] Things were better under the mandatory Guidelines system, where every judge could readily identify when the Sixth Amendment was being violated, and could rule accordingly 3 Proponents of substantive reasonableness review could next argue that actual sentencing involves the consideration of dozens of different facts in order to make an individualized determination about each defendant In the real world, they would contend, it is difficult, if not impossible, to *2 determine whether any given fact was legally essential to the punishment imposed But identifying the particular fatal fact is not necessary to identifying a constitutional violation In the second hypothetical given above, for example, it is not possible to say which single fact, or which combination of facts, sufficed to bring the sentence within the bounds of the "reasonable" But it is possible to say (indeed, it must be said) that some judge-found fact or combination of facts had that effect—and that suffices to establish a Sixth Amendment violation "Whether the judge's authority to impose an enhanced sentence depends on finding a specified fact one of several specified facts or any aggravating fact it remains the case that the jury's verdict alone does not authorize the sentence The judge acquires that authority only upon finding some additional fact" 4 The last conceivable defense of the Guidelines-light would be to wrap them in the mantle of history and tradition "[W]hen a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down Such a venerable and accepted tradition is not to be laid on the examining table and scrutinized for its conformity to some abstract principle of [constitutional] adjudication devised by this Court To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed" Rutan v Republican Party of Ill, 497 US 62, 0 S Ct 2729, 1 L Ed 2d 52 (SCALIA, J, dissenting) (footnote omitted) This consideration has no application here In the federal system, prior to the SRA, substantive appellate review of a district court's sentencing discretion essentially did not exist See, eg, Dorszynski v United States, 418 US 424, 94 S Ct 3042, 41 L Ed 2d 855 ; 94 S Ct 3042 ("[W]ell-established doctrine bars review of the exercise of sentencing discretion") As for state appellate review of sentences, as late as at least 39 States did not permit appellate courts to modify sentences imposed within the statutory limits See Appellate Review of Sentences, A Symposium at the Judicial Conference of the United States Court of Appeals for the Second Circuit, 32 FRD 249, It would be an exaggeration to say that history reflects an established understanding that appellate review of excessive sentences conflicts with the Sixth Amendment But it would also be an exaggeration to say that the historical pedigree of substantive appellate review of sentencing is so strong and clear as to overcome the basic principle underlying the jury-trial right applied by this Court in Apprendi, and Cunningham C A final defense of substantive reasonableness review would be to invoke the intent of Congress or of the remedial opinion As for congressional intent: Of course Congress intended that judge-found facts be legally essential to the punishment imposed; that was the whole reason the mandatory Guidelines violated the Sixth Amendment If we are now to indulge a newfound respect for unconstitutional *2482 congressional intent, we should reimpose the mandatory Guidelines system The quasi-Guidelines system the Court creates today manages to contravene both congressional intent and the Sixth Amendment As for the "intent" of the remedial opinion: That opinion purported to be divining congressional intent in light of what the Sixth Amendment compelled See 543 US, at 263-265, Absent some explanation of why substantive reasonableness review does not cause judge-found facts to justify greater punishment than the jury's verdict or the defendant's guilty plea would sustain, I fail to understand how such review could possibly have been intended by all five Justices who composed the remedial majority After all, at least one of them did not intend "to override and to render academic the entire first part of itself," and has confirmed that "[t]here would have been no majority in for the revision of essayed in [Justice ALITO's Cunningham] dissent" Cunningham, 549 US, at n 15, n 15 (opinion for the Court by GINSBURG, J) II Abandoning substantive reasonableness review does not require a return to the pre-SRA regime that the remedial opinion sought to avoid See 543 US, at 263-265, As I said at the outset, I believe it is possible to give some effect to the remedial opinion and the purposes that it sought to serve while still avoiding the constitutional defect identified in the merits opinion Specifically, I would limit reasonableness review to the sentencing procedures mandated by statute A A central feature of the remedial opinion was its conclusion that the SRA was not completely inseverable See As a result, the Sentencing Commission "remains in place, writing Guidelines, collecting information about actual district court sentencing decisions, undertaking research, and revising the Guidelines accordingly" Likewise, sentencing courts remain obligated to consider the various factors delineated in 18 USC 3553(a) ( ed, Supp IV), including the nowadvisory Guidelines range 543 US, at 259-, And they are still instructed by that subsection to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of [that] subsection" Significantly, 3553(c) ( ed and Supp IV) continues to require that district courts give reasons for their sentencing decisions, a requirement the requisite detail of which depends on whether the sentence is: (1) within the advisory Guidelines range; (2) within an advisory Guidelines range that spans more than 24 months; or (3) outside the advisory Guidelines range These explanations, in turn, help the Commission revise the advisory Guidelines to reflect actual sentencing practices consistent with the statutory goals See (citing 28 USC 994 ( ed and Supp IV)) 's retention of these statutory procedural provisions furthered the congressional purpose of "iron[ing] out sentencing differences," 543 US, at 263, and "avoid[ing] excessive sentencing disparities," It is important that appellate courts police their observance excised the provision of the SRA containing the standards for appellate review, see at (invalidating 18 USC *2483 3742(e) ( ed and Supp IV)), but the remedial majority's creation of reasonableness review gave appellate courts the necessary means to reverse a district court that: appears not to have considered 3553(a); considers impermissible factors; selects a sentence based on clearly erroneous facts; or does not comply with 3553(c)'s requirement for a statement of reasons[6] In addition to its direct effect on sentencing uniformity, this procedural review will indirectly produce, over time, reduction of sentencing disparities By ensuring that district courts give reasons for their sentences, and more specific reasons when they decline to follow the advisory Guidelines range, see 3553(c)(2) ( ed, Supp IV), appellate courts will enable the Sentencing Commission to perform its function of revising the Guidelines to reflect the desirable sentencing practices of the district courts See (citing 28 USC 994 ( ed and Supp IV)) And as that occurs, district courts will have less reason to depart from the Commission's recommendations, leading to more sentencing uniformity[7] One possible objection to procedural review that the remedial opinion appears not to have considered is (f) ( ed, Supp IV), which limits appellate courts to reversing sentences that are imposed "in violation of law" or "as a result of an incorrect application of the sentencing guidelines," 3742(f)(1), or that fall in certain categories and are either "too high" or "too low," 3742(f)(2)[8] But, as I noted in 3742(e) and 3742(f) are inextricably intertwined: Having excised 3742(e)'s provisions setting forth the standards for appellate review, it is nonsensical to continue to apply 3742(f)'s provisions governing the "Decision and Disposition" of appeals, which clearly track those now-excised standards See 543 US, at 306-307, (SCALIA, J, dissenting in part) I would hold that 3742(f) is "incapable of functioning independently" of the provisions excised in and is thus inseverable from them See Alaska Airlines, Inc v Brock, 480 US 678, 107 S Ct 1476, 94 *2484 LEd2d 661 ; 2 N Singer, Sutherland Statutes and Statutory Construction 44:4, p 576 (6th ed 2001) ("Even where part of an act is independent and valid, other parts which are not themselves substantively invalid but have no separate function to perform independent of the invalid portions of the act are also held invalid") B Applying procedural review in this case does not require much further discussion on my part I join Part III of the Court's opinion See ante, at 2468-2469 * * * The Court's decision today leaves unexplained why the mandatory Guidelines were unconstitutional, but the Court-created substantive-review system that contains the same potential for Sixth Amendment violation is not It is irresponsible to leave this patent inconsistency hanging in the air, threatening in the future yet another major revision of Guidelines practices to which the district courts and courts of appeals will have to adjust Procedural review would lay the matter to rest, comporting with both parts of the opinion and achieving the maximum degree of sentencing uniformity on the basis of judge-found facts that the Constitution permits

Justice Souter

dissenting

Rita v. United States

2007-06-21

https://www.courtlistener.com/opinion/145708/rita-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145708/

2006-067

Applying the Sixth Amendment to current sentencing law has gotten complicated, and someone coming cold to this case might wonder how we reached this point. A very general overview of the course of decisions over the past eight years may help to put today's holding in perspective. Members of a criminal jury are guaranteed to be impartial residents of the State and district of the crime, but the Sixth Amendment right to trial by jury otherwise relies on history for details, and the practical instincts of judges and legislators for implementation in the courts. Litigation has, for example, worked through issues of size, see Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029, 55 L. Ed. 2d 234 (1978) (prohibiting five-person state juries but allowing juries of six), and unanimity, see Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32 L. Ed. 2d 184 (1972) (allowing nonunanimous juries in state criminal trials); Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979) (prohibiting nonunanimous six-person juries). Such decisions go to what William James would have called the "cash-value" of the Constitution's guarantee. See W. James, Pragmatism: A New Name for Some Old Ways of Thinking 200 (1st ed.1907). One additional issue of both detail and implementation is the line between judge and jury in determining facts, and in particular the legitimate extent of factfinding by a judge when sentencing a defendant after a guilty plea or a jury's verdict of guilty. Since the very inception of judicial discretion in determining a sentence, judges have acted on what they learn in the course of a trial (and later what they gather from a presentence report or other evidence at time of sentencing), including details a trial jury may not have found to be true when it returned the guilty verdict or answered a special question. But historically, also, the customary judicial use of these extraverdict facts has been in deciding on a sentence within a range set in advance by the statute defining the crime in question. See Williams v. New York, 337 U.S. 241, 246-247, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). Thus, traditionally when a judge imposed a sentence at some point in the range, say, of 0-to-5 years specified by statute for some offense, every fact necessary to go as high as five *2485 years had been found by the jury (or admitted), even though the jury had not made particular or implicit findings of the facts the judge might consider in exercising discretion to set the sentence higher or lower within the 5-year range. It was against this background, in Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), that we called attention to a serious threat to the practical value of a criminal defendant's jury right. Jones had been prosecuted under a statute that exemplified a growing practice of providing a definition and penalty for some basic crime subject to the right of jury trial, but then identifying variants carrying higher ranges of penalties depending on facts that arguably might be found by a judge sitting alone. Thus, Jones was convicted solely of carjacking, but if the further fact of causing "`serious bodily injury'" was shown, the maximum penalty jumped from 15 years to 25. Id., at 230, 119 S. Ct. 1215 (quoting 18 U.S.C. § 2119 (1988 ed., Supp. V)). The Government's position was that the extra fact of serious bodily injury raising the penalty range required no jury finding because it was only a condition for imposing an enhanced sentence, up to a judge, not an element of a more serious crime, subject to the right to a jury's determination. See Jones, 526 U.S., at 233, 119 S. Ct. 1215. It was an unsettling argument, because in prosecutions under these statutory schemes the most serious issue in the case might well be not guilt or innocence of the basic offense, but liability to the substantially enhanced penalty. If, for example, the judge found that Jones had caused not just serious bodily injury, but death, such extraverdict factfinding could have made the difference between 15 years and life imprisonment. Id., at 230, 119 S. Ct. 1215 (quoting § 2119 (1988 ed., Supp. V)). In a case like that, giving judges the exclusive power to find the facts necessary to sentence in the higher range would make the jury a mere gatekeeper to the more important trial before a judge alone. Id., at 243-244, 119 S. Ct. 1215. The Sixth Amendment does not, of course, speak expressly to such a scheme, but that is not a sufficient reason to give it constitutional approval. For if judicial factfinding necessary for an enhanced sentencing range were held to be adequate in the face of a defendant's objection, a defendant's right to have a jury standing between himself and the power of the government to curtail his liberty would take on a previously unsuspected modesty. Jones accordingly treated this practice as suspect enough to call for applying the doctrine of constitutional avoidance when the Court interpreted the statute in question. What the Government called a mere condition for imposing a sentencing enhancement was treated as an element of a more serious offense and made subject to a jury's factfinding. This interpretation obviated the constitutional decision whether subjecting an unwilling defendant to a more onerous range of sentence on facts found solely by a judge would violate the Sixth Amendment. The issue did not go away with Jones, and the constitutional challenge was soon presented inescapably, in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We held that exposing a defendant to an increased penalty beyond the range for a basic crime, based on facts determined exclusively by a judge, violated the Sixth Amendment, in the absence of a jury waiver; a defendant could not be subjected to a penalty more serious than one authorized by the facts found by the jury or admitted by the defendant. *2486 Id., at 490, 120 S. Ct. 2348.[1] A judge could constitutionally determine facts for exercising discretion in sentencing up to that point, but a fact that raised the range of possible penalties functioned like an element of a more serious offense, even if a statute ostensibly tied that fact to the sentence alone. Hence, in the absence of waiver, a sentence in that weightier range could be imposed by a judge only if the enhancing fact was found beyond a reasonable doubt by the trial jury. Ibid. In placing disputed factfinding off judicial limits when, but only when, its effect would be to raise the range of possible sentences, we made a practical judgment that maintained the historical judicial role in finding facts relevant to sentencing within the range set by a jury's verdict, but we recognized that the jury right would be trivialized beyond recognition if that traditional practice could be extended to the point that a judge alone (over objection) could find a fact necessary to raise the upper limit of a sentencing range. From the moment Apprendi drew that line, however, its holding carried apparent implications for the regime of Guidelines sentencing adopted in 1984, see Sentencing Reform Act of 1984, 98 Stat.1987, 18 U.S.C. § 3551 et seq. (2000 ed. and Supp. IV), 28 U.S.C. § 991 et seq. (2000 ed. and Supp. IV). The general object of Guidelines sentencing was the eminently laudable one of promoting substantial consistency in exercising judicial discretion to sentence within the range set by statute for a given crime. Thus, at the elementary level, the Guidelines law limits the sentence that a judge may impose even within the sentencing range provided by the statute creating a particular offense. In effect, it divides a basic sentencing range into subranges and assigns an offender to a subrange based on the particular facts of the case and the offender's criminal history. A judge may depart from the assigned subrange only if the case presents a circumstance "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV). It follows that a judge must find facts beyond those necessary for the jury's guilty verdict to sentence above (or below, for that matter) the subrange designated for an offender with a comparable criminal history whose case presents no relevant facts beyond the formal elements of the crime itself. The result is a hybrid sentencing practice. One could describe it by emphasizing that the judge's factfinding could never increase the sentence beyond the range set by the law defining the crime, or one could stress that a principal motivation for Guidelines sentencing is eliminating some traditional judicial discretion by forbidding a judge to impose a high sentence except on the basis of some fact beyond those necessary for a guilty verdict (and thus subject to the right to a jury's determination). In Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), considering a state sentencing system similar to the federal scheme, we decided that the latter way of looking at it made more sense, if Apprendi was going to mean something in preserving the historical significance of the jury. See 542 U.S., at 305-306, 124 S. Ct. 2531. We held that the additional factfinding necessary for a judge to sentence within a high subrange was comparable to the finding of additional fact required for a judge to impose an *2487 enhanced sentence under the law considered in Apprendi. If Blakely had come out the other way, the significance of Apprendi itself would be in jeopardy: a legislature would be free to bypass Apprendi by providing an abnormally spacious sentencing range for any basic crime (theoretically exposing a defendant to the highest sentence just by the jury's guilty verdict), then leaving it to a judge to make supplementary findings not only appropriate but necessary for a sentence in a subrange at the high end. That would spell the end of Apprendi and diminish the real significance of jury protection that Apprendi had shored up. In United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), a majority of the Court applied Blakely's reasoning and held that the Federal Guidelines, too, subjected defendants to unconstitutional sentences in upper subranges, absent a jury finding or waiver. So far, so good for the Sixth Amendment, but there was the further issue of remedy, and at that step consistency began to falter. If statutory Guidelines were to survive, there were two serious alternatives. One was already in place in courts with the foresight to apply Apprendi to the Guidelines: require any additional facts necessary for a possible high subrange sentence to be charged and submitted to the jury. True, the Government would have to think ahead (and could not charge relevant facts that emerged unexpectedly at trial). But the mandatory character of the Guidelines would be preserved, the goal of consistency would continue to be served, and the practical value of the jury right would not face erosion. The second remedial alternative was a declaration by the Court that the Guidelines were not mandatory but discretionary, so that finding extraverdict facts was not strictly necessary for sentencing in a high subrange under the Guidelines. On this alternative, a judge who found a subsidiary fact specified as a condition for a high subrange sentence might decide to impose a low sentence (independently of the Guidelines' own provisions for downward departure), and a judge who found no such fact might sentence within the high subrange for other reasons that seemed sufficient. If the Guidelines were not mandatory, the subsidiary fact merely provided one reasoned basis for a traditional exercise of discretion to sentence at the high end of the sentencing range provided by the statute defining the crime. But that second alternative could not be so simple: it raised yet further issues, and the reconfigured majority of the Court that in fact adopted it, see 543 U.S., at 244, 125 S. Ct. 738, guaranteed that we would have the case now before us. If district judges treated the now-discretionary Guidelines simply as worthy of consideration but open to rejection in any given case, the Booker remedy would threaten a return to the old sentencing regime and would presumably produce the apparent disuniformity that convinced Congress to adopt Guidelines sentencing in the first place. But if sentencing judges attributed substantial gravitational pull to the now-discretionary Guidelines, if they treated the Guidelines result as persuasive or presumptively appropriate, the Booker remedy would in practical terms preserve the very feature of the Guidelines that threatened to trivialize the jury right. For a presumption of Guidelines reasonableness would tend to produce Guidelines sentences almost as regularly as mandatory Guidelines had done, with judges finding the facts needed for a sentence in an upper subrange. This would open the door to undermining Apprendi itself, and this is what has happened today. *2488 Without a powerful reason to risk reversal on the sentence, a district judge faced with evidence supporting a high subrange Guidelines sentence will do the appropriate factfinding in disparagement of the jury right and will sentence within the high subrange. This prediction is weakened not a whit by the Court's description of within-Guidelines reasonableness as an "appellate" presumption, ante, at 2464-2465 (emphasis deleted). What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, see ante, at 2463-2465, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range, see 18 U.S.C. § 3553(c)(2) (2000 ed., Supp. IV). The upshot is that today's decision moves the threat to the practical value of the Sixth Amendment jury right closer to what it was when this Court flagged it in Jones, and it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by Apprendi and its associated cases. Taking the Booker remedy (of discretionary Guidelines) as a given, however, the way to avoid further risk to Apprendi and the jury right is to hold that a discretionary within-Guidelines sentence carries no presumption of reasonableness. Only if sentencing decisions are reviewed according to the same standard of reasonableness whether or not they fall within the Guidelines range will district courts be assured that the entire sentencing range set by statute is available to them. See Booker, supra, at 263, 125 S. Ct. 738 (calling for a reasonableness standard "across the board"). And only then will they stop replicating the unconstitutional system by imposing appeal-proof sentences within the Guidelines ranges determined by facts found by them alone. I would therefore reject the presumption of reasonableness adopted in this case, not because it is pernicious in and of itself, but because I do not think we can recognize such a presumption and still retain the full effect of Apprendi in aid of the Sixth Amendment guarantee. But I would not stop at rejecting the presumption. Neither my preferred course nor the choice of today's majority can avoid being at odds to some degree with the intent of Congress; there is no question that Congress meant to impose mandatory Guidelines as the means of bringing greater uniformity to sentencing. So I point out that the congressional objective can still be attained, but that Booker's remedial holding means that only Congress can restore the scheme to what it had in mind, and in a way that gives full measure to the right to a jury trial. If Congress has not had a change of heart about the value of a Guidelines system, it can reenact the Guidelines law to give it the same binding force it originally had, but with provision for jury, not judicial, determination of any fact necessary for a sentence within an upper Guidelines subrange. At this point, only Congress can make good on both its enacted policy of mandatory Guidelines sentencing and the guarantee of a robust right of jury trial. I respectfully dissent.[2]

Applying the Sixth Amendment to current sentencing law has gotten complicated, and someone coming cold to this case might wonder how we reached this point. A very general overview of the course of decisions over the past eight years may help to put today's holding in perspective. Members of a criminal jury are guaranteed to be impartial residents of the State and district of the crime, but the Sixth Amendment right to trial by jury otherwise relies on history for details, and the practical instincts of judges and legislators for implementation in the courts. Litigation has, for example, worked through issues of size, see and unanimity, see ; Such decisions go to what William James would have called the "cash-value" of the Constitution's guarantee. See W. James, Pragmatism: A New Name for Some Old Ways of Thinking 200 (1st ed.1907). One additional issue of both detail and implementation is the line between judge and jury in determining facts, and in particular the legitimate extent of factfinding by a judge when sentencing a defendant after a guilty plea or a jury's verdict of guilty. Since the very inception of judicial discretion in determining a sentence, judges have acted on what they learn in the course of a trial (and later what they gather from a presentence report or other evidence at time of sentencing), including details a trial jury may not have found to be true when it returned the guilty verdict or answered a special question. But historically, also, the customary judicial use of these extraverdict facts has been in deciding on a sentence within a range set in advance by the statute defining the crime in question. See Thus, traditionally when a judge imposed a sentence at some point in the range, say, of 0-to-5 years specified by statute for some offense, every fact necessary to go as high as five *2485 years had been found by the jury (or admitted), even though the jury had not made particular or implicit findings of the facts the judge might consider in exercising discretion to set the sentence higher or lower within the 5-year range. It was against this background, in that we called attention to a serious threat to the practical value of a criminal defendant's jury right. had been prosecuted under a statute that exemplified a growing practice of providing a definition and penalty for some basic crime subject to the right of jury trial, but then identifying variants carrying higher ranges of penalties depending on facts that arguably might be found by a judge sitting alone. Thus, was convicted solely of carjacking, but if the further fact of causing "`serious bodily injury'" was shown, the maximum penalty jumped from 15 years to 25. (quoting (1988 ed., Supp. V)). The Government's position was that the extra fact of serious bodily injury raising the penalty range required no jury finding because it was only a condition for imposing an enhanced sentence, up to a judge, not an element of a more serious crime, subject to the right to a jury's determination. See It was an unsettling argument, because in prosecutions under these statutory schemes the most serious issue in the case might well be not guilt or innocence of the basic offense, but liability to the substantially enhanced penalty. If, for example, the judge found that had caused not just serious bodily injury, but death, such extraverdict factfinding could have made the difference between 15 years and life imprisonment. (quoting 2119 (1988 ed., Supp. V)). In a case like that, giving judges the exclusive power to find the facts necessary to sentence in the higher range would make the jury a mere gatekeeper to the more important trial before a judge alone. The Sixth Amendment does not, of course, speak expressly to such a scheme, but that is not a sufficient reason to give it constitutional approval. For if judicial factfinding necessary for an enhanced sentencing range were held to be adequate in the face of a defendant's objection, a defendant's right to have a jury standing between himself and the power of the government to curtail his liberty would take on a previously unsuspected modesty. accordingly treated this practice as suspect enough to call for applying the doctrine of constitutional avoidance when the Court interpreted the statute in question. What the Government called a mere condition for imposing a sentencing enhancement was treated as an element of a more serious offense and made subject to a jury's factfinding. This interpretation obviated the constitutional decision whether subjecting an unwilling defendant to a more onerous range of sentence on facts found solely by a judge would violate the Sixth Amendment. The issue did not go away with and the constitutional challenge was soon presented inescapably, in We held that exposing a defendant to an increased penalty beyond the range for a basic crime, based on facts determined exclusively by a judge, violated the Sixth Amendment, in the absence of a jury waiver; a defendant could not be subjected to a penalty more serious than one authorized by the facts found by the jury or admitted by the defendant. *2486[1] A judge could constitutionally determine facts for exercising discretion in sentencing up to that point, but a fact that raised the range of possible penalties functioned like an element of a more serious offense, even if a statute ostensibly tied that fact to the sentence alone. Hence, in the absence of waiver, a sentence in that weightier range could be imposed by a judge only if the enhancing fact was found beyond a reasonable doubt by the trial jury. In placing disputed factfinding off judicial limits when, but only when, its effect would be to raise the range of possible sentences, we made a practical judgment that maintained the historical judicial role in finding facts relevant to sentencing within the range set by a jury's verdict, but we recognized that the jury right would be trivialized beyond recognition if that traditional practice could be extended to the point that a judge alone (over objection) could find a fact necessary to raise the upper limit of a sentencing range. From the moment Apprendi drew that line, however, its holding carried apparent implications for the regime of Guidelines sentencing adopted in 1984, see Sentencing Reform Act of 1984, 98 Stat.1987, 18 U.S.C. 3551 et seq. ( ed. and Supp. IV), 28 U.S.C. 991 et seq. ( ed. and Supp. IV). The general object of Guidelines sentencing was the eminently laudable one of promoting substantial consistency in exercising judicial discretion to sentence within the range set by statute for a given crime. Thus, at the elementary level, the Guidelines law limits the sentence that a judge may impose even within the sentencing range provided by the statute creating a particular offense. In effect, it divides a basic sentencing range into subranges and assigns an offender to a subrange based on the particular facts of the case and the offender's criminal history. A judge may depart from the assigned subrange only if the case presents a circumstance "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. 3553(b)(1) ( ed., Supp. IV). It follows that a judge must find facts beyond those necessary for the jury's guilty verdict to sentence above (or below, for that matter) the subrange designated for an offender with a comparable criminal history whose case presents no relevant facts beyond the formal elements of the crime itself. The result is a hybrid sentencing practice. One could describe it by emphasizing that the judge's factfinding could never increase the sentence beyond the range set by the law defining the crime, or one could stress that a principal motivation for Guidelines sentencing is eliminating some traditional judicial discretion by forbidding a judge to impose a high sentence except on the basis of some fact beyond those necessary for a guilty verdict (and thus subject to the right to a jury's determination). In considering a state sentencing system similar to the federal scheme, we decided that the latter way of looking at it made more sense, if Apprendi was going to mean something in preserving the historical significance of the jury. See -306, We held that the additional factfinding necessary for a judge to sentence within a high subrange was comparable to the finding of additional fact required for a judge to impose an *2487 enhanced sentence under the law considered in Apprendi. If Blakely had come out the other way, the significance of Apprendi itself would be in jeopardy: a legislature would be free to bypass Apprendi by providing an abnormally spacious sentencing range for any basic crime (theoretically exposing a defendant to the highest sentence just by the jury's guilty verdict), then leaving it to a judge to make supplementary findings not only appropriate but necessary for a sentence in a subrange at the high end. That would spell the end of Apprendi and diminish the real significance of jury protection that Apprendi had shored up. In United a majority of the Court applied Blakely's reasoning and held that the Federal Guidelines, too, subjected defendants to unconstitutional sentences in upper subranges, absent a jury finding or waiver. So far, so good for the Sixth Amendment, but there was the further issue of remedy, and at that step consistency began to falter. If statutory Guidelines were to survive, there were two serious alternatives. One was already in place in courts with the foresight to apply Apprendi to the Guidelines: require any additional facts necessary for a possible high subrange sentence to be charged and submitted to the jury. True, the Government would have to think ahead (and could not charge relevant facts that emerged unexpectedly at trial). But the mandatory character of the Guidelines would be preserved, the goal of consistency would continue to be served, and the practical value of the jury right would not face erosion. The second remedial alternative was a declaration by the Court that the Guidelines were not mandatory but discretionary, so that finding extraverdict facts was not strictly necessary for sentencing in a high subrange under the Guidelines. On this alternative, a judge who found a subsidiary fact specified as a condition for a high subrange sentence might decide to impose a low sentence (independently of the Guidelines' own provisions for downward departure), and a judge who found no such fact might sentence within the high subrange for other reasons that seemed sufficient. If the Guidelines were not mandatory, the subsidiary fact merely provided one reasoned basis for a traditional exercise of discretion to sentence at the high end of the sentencing range provided by the statute defining the crime. But that second alternative could not be so simple: it raised yet further issues, and the reconfigured majority of the Court that in fact adopted it, see guaranteed that we would have the case now before us. If district judges treated the now-discretionary Guidelines simply as worthy of consideration but open to rejection in any given case, the remedy would threaten a return to the old sentencing regime and would presumably produce the apparent disuniformity that convinced Congress to adopt Guidelines sentencing in the first place. But if sentencing judges attributed substantial gravitational pull to the now-discretionary Guidelines, if they treated the Guidelines result as persuasive or presumptively appropriate, the remedy would in practical terms preserve the very feature of the Guidelines that threatened to trivialize the jury right. For a presumption of Guidelines reasonableness would tend to produce Guidelines sentences almost as regularly as mandatory Guidelines had done, with judges finding the facts needed for a sentence in an upper subrange. This would open the door to undermining Apprendi itself, and this is what has happened today. *2488 Without a powerful reason to risk reversal on the sentence, a district judge faced with evidence supporting a high subrange Guidelines sentence will do the appropriate factfinding in disparagement of the jury right and will sentence within the high subrange. This prediction is weakened not a whit by the Court's description of within-Guidelines reasonableness as an "appellate" presumption, ante, at 2464-2465 (emphasis deleted). What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, see ante, at 2463-2465, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range, see 18 U.S.C. 3553(c)(2) ( ed., Supp. IV). The upshot is that today's decision moves the threat to the practical value of the Sixth Amendment jury right closer to what it was when this Court flagged it in and it seems fair to ask just what has been accomplished in real terms by all the judicial labor imposed by Apprendi and its associated cases. Taking the remedy (of discretionary Guidelines) as a given, however, the way to avoid further risk to Apprendi and the jury right is to hold that a discretionary within-Guidelines sentence carries no presumption of reasonableness. Only if sentencing decisions are reviewed according to the same standard of reasonableness whether or not they fall within the Guidelines range will district courts be assured that the entire sentencing range set by statute is available to them. See (calling for a reasonableness standard "across the board"). And only then will they stop replicating the unconstitutional system by imposing appeal-proof sentences within the Guidelines ranges determined by facts found by them alone. I would therefore reject the presumption of reasonableness adopted in this case, not because it is pernicious in and of itself, but because I do not think we can recognize such a presumption and still retain the full effect of Apprendi in aid of the Sixth Amendment guarantee. But I would not stop at rejecting the presumption. Neither my preferred course nor the choice of today's majority can avoid being at odds to some degree with the intent of Congress; there is no question that Congress meant to impose mandatory Guidelines as the means of bringing greater uniformity to sentencing. So I point out that the congressional objective can still be attained, but that 's remedial holding means that only Congress can restore the scheme to what it had in mind, and in a way that gives full measure to the right to a jury trial. If Congress has not had a change of heart about the value of a Guidelines system, it can reenact the Guidelines law to give it the same binding force it originally had, but with provision for jury, not judicial, determination of any fact necessary for a sentence within an upper Guidelines subrange. At this point, only Congress can make good on both its enacted policy of mandatory Guidelines sentencing and the guarantee of a robust right of jury trial. I respectfully dissent.[2]

Justice Ginsburg

majority

Thompson v. Keohane

1995-11-29

https://www.courtlistener.com/opinion/117982/thompson-v-keohane/

https://www.courtlistener.com/api/rest/v3/clusters/117982/

1995-008

During a two-hour, tape-recorded session at Alaska state trooper headquarters, petitioner Carl Thompson confessed that he killed his former wife. Thompson's confession was placed in evidence at the ensuing Alaska state-court trial, *102 and he was convicted of first-degree murder. Challenging his conviction in a federal habeas corpus proceeding, Thompson maintained that the Alaska troopers gained his confession without according him the warnings Miranda v. Arizona, 384 U.S. 436 (1966), requires: that he could remain silent; that anything he said could be used against him in court; and that he was entitled to an attorney, either retained or appointed. Miranda warnings are due only when a suspect interrogated by the police is "in custody." The state trial and appellate courts determined that Thompson was not "in custody" when he confessed. The statute governing federal habeas corpus proceedings, 28 U.S. C. § 2254, directs that, ordinarily, state-court fact findings "shall be presumed to be correct." § 2254(d). The question before this Court is whether the state-court determination that Thompson was not "in custody" when he confessed is a finding of fact warranting a presumption of correctness, or a matter of law calling for independent review in federal court. We hold that the issue whether a suspect is "in custody," and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review. I On September 10, 1986, two moose hunters discovered the body of a dead woman floating in a gravel pit lake on the outskirts of Fairbanks, Alaska. The woman had been stabbed 29 times. Notified by the hunters, the Alaska state troopers issued a press release seeking assistance in identifying the body. Thompson called the troopers on September 11 to inform them that his former wife, Dixie Thompson, fit the description in the press release and that she had been missing for about a month. Through a dental examination, the troopers conclusively established that the corpse was Dixie Thompson. On September 15, a trooper called *103 Thompson and asked him to come to headquarters, purportedly to identify personal items the troopers thought belonged to Dixie Thompson. It is now undisputed, however, that the trooper's primary reason for contacting Thompson was to question him about the murder. Thompson drove to the troopers' headquarters in his pickup truck and, upon arriving, immediately identified the items as Dixie's. He remained at headquarters, however, for two more hours while two unarmed troopers continuously questioned him in a small interview room and tape-recorded the exchange. The troopers did not inform Thompson of his Miranda rights. Although they constantly assured Thompson he was free to leave, they also told him repeatedly that they knew he had killed his former wife. Informing Thompson that execution of a search warrant was underway at his home, and that his truck was about to be searched pursuant to another warrant, the troopers asked questions that invited a confession. App. 43-79.[1] Eventually, Thompson told the troopers he killed Dixie. *104 As promised, the troopers permitted Thompson to leave, but impounded his truck. Left without transportation, Thompson accepted the troopers' offer of a ride to his friend's *105 house. Some two hours later, the troopers arrested Thompson and charged him with first-degree murder. The Alaska trial court, without holding an evidentiary hearing, denied Thompson's motion to suppress his September 15 statements. Tr. 118 (Dec. 12, 1986); Tr. 142 (Mar. 18, 1987). Deciding the motion on the papers submitted, the trial court ruled that Thompson was not "in custody" for Miranda purposes, therefore the troopers had no obligation to inform him of his Miranda rights. App. 8-9.[2] Applying an objective test to resolve the "in custody" question, the court asked whether "`a reasonable person would feel he was not free to leave and break off police questioning.' " Id. , at 7 (quoting Hunter v. State, 590 P.2d 888, 895 (Alaska 1979)). These features, the court indicated, were key: Thompson arrived at the station in response to a trooper's request; two unarmed troopers in plain clothes questioned him; Thompson was told he was free to go at any time; and he was not arrested at the conclusion of the interrogation. App. 7-8. Although the trial court held that, under the totality of the circumstances, a reasonable person would have felt free to leave, it also observed that the troopers' subsequent actions—releasing and shortly thereafter arresting Thompson—rendered the question "very close." Id. , at 8-9. After a trial, at which the prosecution played the taperecorded confession, the jury found Thompson guilty of first-degree murder and tampering with evidence. The Court of Appeals of Alaska affirmed Thompson's conviction, concluding, among other things, that the troopers had not placed Thompson "in custody," and therefore had no obligation to give him Miranda warnings. Thompson v. State, *106 768 P.2d 127, 131 (Alaska App. 1989).[3] The Alaska Supreme Court denied discretionary review. App. 24. Thompson filed a petition for a writ of habeas corpus in the United States District Court for the District of Alaska. The District Court denied the writ, according a presumption of correctness under 28 U.S. C. § 2254(d) to the state court's conclusion that, when Thompson confessed, he was not yet "in custody" for Miranda purposes. App. 37. The Court of Appeals for the Ninth Circuit affirmed without publishing an opinion. 34 F.3d 1073 (1994). Based on Circuit precedent,[4] the court held that "a state court's determination that a defendant was not in custody for purposes of Miranda is a question of fact entitled to the presumption of correctness under 28 U.S. C. § 2254(d)." App. 41. Federal Courts of Appeals disagree on the issue Thompson asks us to resolve: whether state-court "in custody" determinations are matters of fact entitled to a presumption of correctness under 28 U.S. C. § 2254(d), or mixed questions of law and fact warranting independent review by the federal habeas court. Compare Feltrop v. Delo, 46 F.3d 766, 773 (CA8 1995) (applying presumption of correctness), with Jacobs v. Singletary, 952 F.2d 1282, 1291 (CA11 1992) (conducting independent review). Because uniformity among federal courts is important on questions of this order, we granted certiorari to end the division of authority. 513 U. S. *107 1126 (1995). We now hold that the 28 U.S. C. § 2254(d) presumption does not apply to "in custody" rulings; accordingly, we vacate the Ninth Circuit's judgment. II "[I]n-custody interrogation[s]," this Court recognized in Miranda v. Arizona, place "inherently compelling pressures" on the persons interrogated. 384 U.S., at 467. To safeguard the uncounseled individual's Fifth Amendment privilege against self-incrimination, the Miranda Court held, suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation. Id. , at 444. The Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Ibid.; see also Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (duty to give Miranda warnings is triggered "only where there has been such a restriction on a person's freedom as to render him `in custody' ") (quoted in Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) ). Our task in petitioner Thompson's case is to identify the standard governing federal habeas courts' review of state-court "in custody" determinations.[5] A Section 2254 governs federal habeas corpus proceedings instituted by persons in custody pursuant to the judgment of a state court. In such proceedings, § 2254(d) declares, *108 state-court determinations of "a factual issue" "shall be presumed to be correct" absent one of the enumerated exceptions.[6] This provision, added in a 1966 amendment, Act of *109 Nov. 2, 1966, Pub. L. 89-711, 80 Stat. 1105-1106, received the Court's close attention in Miller v. Fenton, 474 U.S. 104 (1985). As the Miller Court observed, § 2254(d) "was an almost verbatim codification of the standards delineated in Townsend v. Sain, 372 U.S. 293 (1963), for determining when a district court must hold an evidentiary hearing before acting on a habeas petition." Miller, 474 U. S., at 111.[7]Townsend counseled that, if the habeas petitioner has had in state court "a full and fair hearing . . . resulting in reliable findings," the federal court "ordinarily should . . . accept the facts as found" by the state tribunal. 372 U.S., at 318. Section 2254(d) essentially "elevated [the Townsend Court's] exhortation into a mandatory presumption of correctness." Miller , 474 U. S., at 111-112; see also id. , at 112 (emphasizing respect appropriately accorded "a coequal state judiciary" and citing Culombe v. Connecticut, 367 U.S. 568, 605 (1961) (opinion of Frankfurter, J.)). Just as Townsend `s instruction on the respect appropriately accorded state-court fact findings is now captured in the § 2254(d) presumption, so we have adhered to Townsend `s definition of the § 2254(d) term "factual issue."[8] The Townsend Court explained that by "`issues of fact,' " it meant *110 "basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators . . . .' " 372 U.S., at 309, n. 6 (quoting Brown v. Allen, 344 U.S. 443, 506 (1953) (opinion of Frankfurter, J.)). "Socalled mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations," the Townsend Court added, "are not facts in this sense." 372 U.S., at 309, n. 6.[9] In applying § 2254(d), we have reaffirmed that "basic, primary, or historical facts" are the "factual issue[s]" to which the statutory presumption of correctness dominantly relates. See, e. g., Miller, 474 U. S., at 112 ("[S]ubsidiary factual questions" in alleged involuntariness of confession cases are subject to the § 2254(d) presumption, but "the ultimate question"—requiring a "totality of the circumstances" assessment—"is a matter for independent federal determination."); Cuyler v. Sullivan, 446 U.S. 335, 342 (1980) ("mixed determination[s] of law and fact" generally are not subject to the § 2254(d) presumption of correctness). It must be acknowledged, however, "that the Court has not charted an entirely clear course in this area." Miller, 474 U. S., at 113. In regard to § 2254(d), as in other contexts,[10] the proper characterization of a question as one of *111 fact or law is sometimes slippery. See ibid.; Wainwright v. Witt, 469 U.S. 412, 429 (1985) ("It will not always be easy to separate questions of `fact' from `mixed questions of law and fact' for § 2254(d) purposes . .. ."). Two lines of decisions compose the Court's § 2254(d) law/fact jurisprudence. In several cases, the Court has classified as "factual issues" within § 2254(d)'s compass questions extending beyond the determination of "what happened." This category notably includes: competency to stand trial (e. g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam) ); and juror impartiality (e. g., Witt , 469 U. S., at 429; Patton v. Yount, 467 U.S. 1025, 1036 (1984); Rushen v. Spain, 464 U.S. 114, 120 (1983)). While these issues encompass more than "basic, primary, or historical facts," their resolution depends heavily on the trial court's appraisal of witness credibility and demeanor. See, e. g., Witt, 469 U. S., at 429 (Although the trial court is "applying some kind of legal standard to what [it] sees and hears," its "predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record."). This Court has reasoned that a trial court is better positioned to make decisions of this genre, and has therefore accorded the judgment of the jurist-observer "presumptive weight." Miller, 474 U. S., at 114 (when an "issue involves the credibility of witnesses and therefore turns largely on an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court"). On the other hand, the Court has ranked as issues of law for § 2254(d) purposes: the voluntariness of a confession (Miller, 474 U. S., at 116); the effectiveness of counsel's assistance (Strickland v. Washington, 466 U.S. 668, 698 (1984)); and the potential conflict of interest arising out of an attorney's representation of multiple defendants (Cuyler, 446 U. S., at 341-342). "What happened" issues in these cases warranted a presumption of correctness, but the Court declared "the ultimate question" outside § 2254(d)'s domain *112 because of its "uniquely legal dimension." Miller, 474 U. S., at 116; see also Sumner v. Mata, 455 U.S. 591, 597 (1982) (per curiam) ("[T]he constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254(d)."); Brewer v. Williams, 430 U.S. 387, 397, and n. 4, 403-404 (1977) (waiver of Sixth Amendment right to assistance of counsel is not a question of historical fact, but rather requires application of constitutional principles to facts). B The ultimate "in custody" determination for Miranda purposes, we are persuaded, fits within the latter class of cases. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances,[11] would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Mathiason, 429 U. S., at 495). The first inquiry, all agree, is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness under 28 U.S. C. § 2254(d). The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate *113 determination, we hold, presents a "mixed question of law and fact" qualifying for independent review. The practical considerations that have prompted the Court to type questions like juror bias and competency as "factual issue[s]," and therefore governed by § 2254(d)'s presumption of correctness, are not dominant here. As this case illustrates, the trial court's superior capacity to resolve credibility issues is not dispositive of the "in custody" inquiry.[12] Credibility determinations, as in the case of the alleged involuntariness of a confession, see Miller, 474 U. S., at 112, may sometimes contribute to the establishment of the historical facts and thus to identification of the "totality of the circumstances." But the crucial question entails an evaluation made after determination of those circumstances: if encountered by a "reasonable person," would the identified circumstances add up to custody as defined in Miranda?[13]*114 See Berkemer v. McCarty, 468 U.S. 420, 442 (1984) (court must assess "how a reasonable man in the suspect's position would have understood his situation"); cf. Miller, 474 U. S., at 116-117 ("[A]ssessments of credibility and demeanor are not crucial to the proper resolution of the ultimate issue of `voluntariness.' "). Unlike the voir dire of a juror, Patton, 467 U. S., at 1038, or the determination of a defendant's competency, Maggio, 462 U. S., at 117, which "take[s] place in open court on a full record," Miller, 474 U. S., at 117, the trial court does not have a first-person vantage on whether a defendant was "in custody" for Miranda purposes. See 474 U.S., at 117 (police interrogations yielding confessions ordinarily occur, not in court, but in an "inherently more coercive environment"). Furthermore, in fathoming the state of mind of a potential juror or a defendant in order to answer the questions, "Is she free of bias?," "Is he competent to stand trial?," the trial court makes an individual-specific decision, one unlikely to have precedential value.[14] In contrast, "in custody" determinations do guide future decisions.[15] We thus conclude *115 that once the historical facts are resolved, the state court is not "in an appreciably better position than the federal habeas court to make [the ultimate] determination" of the consistency of the law enforcement officer's conduct with the federal Miranda warning requirement. See 474 U.S., at 117. Notably, we have treated the "in custody" question as one of law when States complained that their courts had erroneously expanded the meaning of "custodial interrogation." See Beheler, 463 U. S., at 1121-1125 (summarily reversing California Court of Appeal's judgment that respondent was "in custody"); Mathiason, 429 U. S., at 494-496 (summarily reversing Oregon Supreme Court's determination that respondent was "in custody"); cf. Oregon v. Hass, 420 U.S. 714, 719 (1975) ("[A] State may not impose . . . greater restrictions [on police activity] as a matter of federal constitutional law when this Court specifically refrains from imposing them."). It would be anomalous to type the question differently when an individual complains that the state courts had erroneously constricted the circumstances that add up to an "in custody" conclusion. Classifying "in custody" as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law. See, e. g., Berkemer, 468 U. S., at 436-439 (routine traffic stop—typically temporary, brief, and public—does not place driver "in custody" for Miranda warning purposes); see also Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 273-276 (1985) ("norm elaboration occurs best when the Court has power to consider fully a series of closely *116 related situations"; case-by-case elaboration when a constitutional right is implicated may more accurately be described as law declaration than as law application). * * * Applying § 2254(d)'s presumption of correctness to the Alaska court's "in custody" determination, both the District Court and the Court of Appeals ruled that Thompson was not "in custody" and thus not entitled to Miranda warnings. Because we conclude that state-court "in custody" determinations warrant independent review by a federal habeas court, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

During a two-hour, tape-recorded session at Alaska state trooper headquarters, petitioner Carl Thompson confessed that he killed his former wife. Thompson's confession was placed in evidence at the ensuing Alaska state-court trial, *102 and he was convicted of first-degree murder. Challenging his conviction in a federal habeas corpus proceeding, Thompson maintained that the Alaska troopers gained his confession without according him the warnings requires: that he could remain silent; that anything he said could be used against him in court; and that he was entitled to an attorney, either retained or appointed. Miranda warnings are due only when a suspect interrogated by the police is "in custody." The state trial and appellate courts determined that Thompson was not "in custody" when he confessed. The statute governing federal habeas corpus proceedings, 28 U.S. C. 2254, directs that, ordinarily, state-court fact findings "shall be presumed to be correct." 2254(d). The question before this Court is whether the state-court determination that Thompson was not "in custody" when he confessed is a finding of fact warranting a presumption of correctness, or a matter of law calling for independent review in federal court. We hold that the issue whether a suspect is "in custody," and therefore entitled to Miranda warnings, presents a mixed question of law and fact qualifying for independent review. I On September 10, 1986, two moose hunters discovered the body of a dead woman floating in a gravel pit lake on the outskirts of Fairbanks, Alaska. The woman had been stabbed 29 times. Notified by the hunters, the Alaska state troopers issued a press release seeking assistance in identifying the body. Thompson called the troopers on September 11 to inform them that his former wife, Dixie Thompson, fit the description in the press release and that she had been missing for about a month. Through a dental examination, the troopers conclusively established that the corpse was Dixie Thompson. On September 15, a trooper called *103 Thompson and asked him to come to headquarters, purportedly to identify personal items the troopers thought belonged to Dixie Thompson. It is now undisputed, however, that the trooper's primary reason for contacting Thompson was to question him about the murder. Thompson drove to the troopers' headquarters in his pickup truck and, upon arriving, immediately identified the items as Dixie's. He remained at headquarters, however, for two more hours while two unarmed troopers continuously questioned him in a small interview room and tape-recorded the exchange. The troopers did not inform Thompson of his Miranda rights. Although they constantly assured Thompson he was free to leave, they also told him repeatedly that they knew he had killed his former wife. Informing Thompson that execution of a search warrant was underway at his home, and that his truck was about to be searched pursuant to another warrant, the troopers asked questions that invited a confession. App. 43-79.[1] Eventually, Thompson told the troopers he killed Dixie. *104 As promised, the troopers permitted Thompson to leave, but impounded his truck. Left without transportation, Thompson accepted the troopers' offer of a ride to his friend's *105 house. Some two hours later, the troopers arrested Thompson and charged him with first-degree murder. The Alaska trial court, without holding an evidentiary hearing, denied Thompson's motion to suppress his September 15 statements. Tr. 118 (Dec. 12, 1986); Tr. 142 (Mar. 18, 1987). Deciding the motion on the papers submitted, the trial court ruled that Thompson was not "in custody" for Miranda purposes, therefore the troopers had no obligation to inform him of his Miranda rights. App. 8-9.[2] Applying an objective test to resolve the "in custody" question, the court asked whether "`a reasonable person would feel he was not free to leave and break off police questioning.' " at 7 ). These features, the court indicated, were key: Thompson arrived at the station in response to a trooper's request; two unarmed troopers in plain clothes questioned him; Thompson was told he was free to go at any time; and he was not arrested at the conclusion of the interrogation. App. 7-8. Although the trial court held that, under the totality of the circumstances, a reasonable person would have felt free to leave, it also observed that the troopers' subsequent actions—releasing and shortly thereafter arresting Thompson—rendered the question "very close." at 8-9. After a trial, at which the prosecution played the taperecorded confession, the jury found Thompson guilty of first-degree murder and tampering with evidence. The Court of Appeals of Alaska affirmed Thompson's conviction, concluding, among other things, that the troopers had not placed Thompson "in custody," and therefore had no obligation to give him Miranda warnings.[3] The Alaska Supreme Court denied discretionary review. App. 24. Thompson filed a petition for a writ of habeas corpus in the United States District Court for the District of Alaska. The District Court denied the writ, according a presumption of correctness under 28 U.S. C. 2254(d) to the state court's conclusion that, when Thompson confessed, he was not yet "in custody" for Miranda purposes. App. 37. The Court of Appeals for the Ninth Circuit affirmed without publishing an opinion. Based on Circuit precedent,[4] the court held that "a state court's determination that a defendant was not in custody for purposes of Miranda is a question of fact entitled to the presumption of correctness under 28 U.S. C. 2254(d)." App. 41. Federal Courts of Appeals disagree on the issue Thompson asks us to resolve: whether state-court "in custody" determinations are matters of fact entitled to a presumption of correctness under 28 U.S. C. 2254(d), or mixed questions of law and fact warranting independent review by the federal habeas court. Compare with Because uniformity among federal courts is important on questions of this order, we granted certiorari to end the division of authority. 513 U. S. *107 1126 We now hold that the 28 U.S. C. 2254(d) presumption does not apply to "in custody" rulings; accordingly, we vacate the Ninth Circuit's judgment. II "[I]n-custody interrogation[s]," this Court recognized in place "inherently compelling pressures" on the persons To safeguard the uncounseled individual's Fifth Amendment privilege against self-incrimination, the Miranda Court held, suspects interrogated while in police custody must be told that they have a right to remain silent, that anything they say may be used against them in court, and that they are entitled to the presence of an attorney, either retained or appointed, at the interrogation. at 444. The Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Ib; see also (duty to give Miranda warnings is triggered "only where there has been such a restriction on a person's freedom as to render him `in custody' ") ). Our task in petitioner Thompson's case is to identify the standard governing federal habeas courts' review of state-court "in custody" determinations.[5] A Section 2254 governs federal habeas corpus proceedings instituted by persons in custody pursuant to the judgment of a state court. In such proceedings, 2254(d) declares, *108 state-court determinations of "a factual issue" "shall be presumed to be correct" absent one of the enumerated exceptions.[6] This provision, added in a 1966 amendment, Act of *109 Nov. 2, 1966, Stat. 1105-1106, received the Court's close attention in As the Court observed, 2254(d) "was an almost verbatim codification of the standards delineated in for determining when a district court must hold an evidentiary hearing before acting on a habeas petition."[7]Townsend counseled that, if the habeas petitioner has had in state court "a full and fair hearing resulting in reliable findings," the federal court "ordinarily should accept the facts as found" by the state Section 2254(d) essentially "elevated [the Townsend Court's] exhortation into a mandatory presumption of correctness." -112; see also at 112 ). Just as Townsend `s instruction on the respect appropriately accorded state-court fact findings is now captured in the 2254(d) presumption, so we have adhered to Townsend `s definition of the 2254(d) term "factual issue."[8] The Townsend Court explained that by "`issues of fact,' " it meant *110 "basic, primary, or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators' " n. 6 ). "Socalled mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations," the Townsend Court added, "are not facts in this sense." n. 6.[9] In applying 2254(d), we have reaffirmed that "basic, primary, or historical facts" are the "factual issue[s]" to which the statutory presumption of correctness dominantly relates. See, e. g., ("[S]ubsidiary factual questions" in alleged involuntariness of confession cases are subject to the 2254(d) presumption, but "the ultimate question"—requiring a "totality of the circumstances" assessment—"is a matter for independent federal determination."); ("mixed determination[s] of law and fact" generally are not subject to the 2254(d) presumption of correctness). It must be acknowledged, however, "that the Court has not charted an entirely clear course in this area." In regard to 2254(d), as in other contexts,[10] the proper characterization of a question as one of *111 fact or law is sometimes slippery. See ib; ("It will not always be easy to separate questions of `fact' from `mixed questions of law and fact' for 2254(d) purposes"). Two lines of decisions compose the Court's 2254(d) law/fact jurisprudence. In several cases, the Court has classified as "factual issues" within 2254(d)'s compass questions extending beyond the determination of "what happened." This category notably includes: competency to stand trial ); and juror impartiality ; ). While these issues encompass more than "basic, primary, or historical facts," their resolution depends heavily on the trial court's appraisal of witness credibility and demeanor. See, e. g., 469 U. S., at This Court has reasoned that a trial court is better positioned to make decisions of this genre, and has therefore accorded the judgment of the jurist-observer "presumptive weight." On the other hand, the Court has ranked as issues of law for 2254(d) purposes: the voluntariness of a confession (, ); the effectiveness of counsel's assistance ); and the potential conflict of interest arising out of an attorney's representation of multiple defendants (, -). "What happened" issues in these cases warranted a presumption of correctness, but the Court declared "the ultimate question" outside 2254(d)'s domain *112 because of its "uniquely legal dimension." ; see also ("[T]he constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by 2254(d)."); B The ultimate "in custody" determination for Miranda purposes, we are persuaded, fits within the latter class of cases. Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances,[11] would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (quoting U. S., at ). The first inquiry, all agree, is distinctly factual. State-court findings on these scene- and action-setting questions attract a presumption of correctness under 28 U.S. C. 2254(d). The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate *113 determination, we hold, presents a "mixed question of law and fact" qualifying for independent review. The practical considerations that have prompted the Court to type questions like juror bias and competency as "factual issue[s]," and therefore governed by 2254(d)'s presumption of correctness, are not dominant here. As this case illustrates, the trial court's superior capacity to resolve credibility issues is not dispositive of the "in custody" inquiry.[12] Credibility determinations, as in the case of the alleged involuntariness of a confession, see may sometimes contribute to the establishment of the historical facts and thus to identification of the "totality of the circumstances." But the crucial question entails an evaluation made after determination of those circumstances: if encountered by a "reasonable person," would the identified circumstances add up to custody as defined in Miranda?[13]*114 See ; cf. - Unlike the voir dire of a juror, or the determination of a defendant's competency, 462 U. S., at which "take[s] place in open court on a full record," 474 U. S., at the trial court does not have a first-person vantage on whether a defendant was "in custody" for Miranda purposes. See 474 U.S., at Furthermore, in fathoming the state of mind of a potential juror or a defendant in order to answer the questions, "Is she free of bias?," "Is he competent to stand trial?," the trial court makes an individual-specific decision, one unlikely to have precedential value.[14] In contrast, "in custody" determinations do guide future decisions.[15] We thus conclude *115 that once the historical facts are resolved, the state court is not "in an appreciably better position than the federal habeas court to make [the ultimate] determination" of the consistency of the law enforcement officer's conduct with the federal Miranda warning requirement. See 474 U.S., at Notably, we have treated the "in custody" question as one of law when States complained that their courts had erroneously expanded the meaning of "custodial interrogation." See - ; U. S., at 494-496 ; cf. It would be anomalous to type the question differently when an individual complains that the state courts had erroneously constricted the circumstances that add up to an "in custody" conclusion. Classifying "in custody" as a determination qualifying for independent review should serve legitimate law enforcement interests as effectively as it serves to ensure protection of the right against self-incrimination. As our decisions bear out, the law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law. See, e. g., -439 ; see also Monaghan, Constitutional Fact Review, * * * Applying 2254(d)'s presumption of correctness to the Alaska court's "in custody" determination, both the District Court and the Court of Appeals ruled that Thompson was not "in custody" and thus not entitled to Miranda warnings. Because we conclude that state-court "in custody" determinations warrant independent review by a federal habeas court, the judgment of the United States Court of Appeals for the Ninth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

dissenting

Thompson v. Keohane

1995-11-29

https://www.courtlistener.com/opinion/117982/thompson-v-keohane/

https://www.courtlistener.com/api/rest/v3/clusters/117982/

1995-008

Carl Thompson murdered his ex-wife, stabbing her 29 times. He then wrapped her body in chains and a bedspread and tossed the corpse into a water-filled gravel pit. As part of their investigation, police officers in Fairbanks, Alaska, questioned Thompson about his role in the murder, and Thompson confessed. Thompson was repeatedly told that he could leave the interview and was, in fact, permitted to leave at the close of questioning. I believe that the Alaska trial judge—who first decided this question almost a decade ago—was in a far better position than a federal habeas court to determine whether Thompson was "in custody" for purposes of Miranda v. Arizona, 384 U.S. 436 (1966). So long as that judgment finds fair support in the record, I would presume that it is correct. I dissent. To determine whether a person is "in custody" under Miranda, "a court must examine all of the circumstances surrounding the interrogation, but `the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on *117 freedom of movement" of the degree associated with a formal arrest.' " Stansbury v. California, 511 U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam), quoting in turn Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) ). "`[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.' " 511 U.S., at 324 (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984)). I agree with the majority that a legal standard must be applied by a state trial judge in making the Miranda custody inquiry. In light of our more recent decisions applying § 2254(d), however, I do not agree that the standards articulated in Townsend v. Sain, 372 U.S. 293 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5 (1992), for distinguishing factual issues from mixed questions of law and fact, dictate a result either way in this case. See, e. g., Wainwright v. Witt, 469 U.S. 412, 429 (1985) (juror bias determination is a question of fact, even though "[t]he trial judge is of course applying some kind of legal standard to what he sees and hears"); Patton v. Yount, 467 U.S. 1025, 1037, n. 12 (1984) (juror bias is a question of fact although "[t]here are, of course, factual and legal questions to be considered in deciding whether a juror is qualified"). Because the Miranda custody issue "falls somewhere between a pristine legal standard and a simple historical fact," we must decide, "as a matter of the sound administration of justice, [which] judicial actor is better positioned . . . to decide the issue in question." Miller v. Fenton, 474 U.S. 104, 114 (1985). The state trial judge is, in my estimation, the bestpositioned judicial actor to decide the relatively straightforward and fact-laden question of Miranda custody. See California v. Beheler, supra, at 1128 (Stevens, J., dissenting) (state "courts are far better equipped than we are to assess the police practices that are highly relevant to the determination whether particular circumstances amount to custodial *118 interrogation"). In making the custody determination, the state trial judge must consider a complex of diverse and case-specific factors in an effort to gain an overall sense of the defendant's situation at the time of the interrogation. These factors include, at a minimum, the location, timing, and length of the interview, the nature and tone of the questioning, whether the defendant came to the place of questioning voluntarily, the use of physical contact or physical restraint, and the demeanor of all of the key players, both during the interview and in any proceedings held in court. In assessing all of these facts, the state trial judge will often take live testimony, consider documentary evidence, and listen to audiotapes or watch videotapes of the interrogation. Assessments of credibility and demeanor are crucial to the ultimate determination, for the trial judge will often have to weigh conflicting accounts of what transpired. The trial judge is also likely to draw inferences, which are similarly entitled to deference, from "physical or documentary evidence or . . . other facts." Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). The Miranda custody inquiry is thus often a matter of "shades and degrees," Withrow v. Williams, 507 U.S. 680, 712 (1993) (O'Connor, J., concurring in part and dissenting in part), that requires the state trial judge to make any number of "`fact-intensive, close calls.' " Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 404 (1990) (citation omitted). The majority is quite right that the test contains an objective component—how a "reasonable man in the suspect's position would have understood his situation," Stansbury v. California, supra, at 324—but this alone cannot be dispositive of whether the determination should be reviewed deferentially. See, e. g., Cooter & Gell v. Hartmarx Corp., supra, at 402 (Rule 11 and negligence determinations, both of which involve objective tests, are subject to deferential review). "[T]he line between pure facts . . . and . . . the application to them of a legal standard that is as non-technical—as commonsensical—as reasonableness is a faint one." United *119 States v. Humphrey, 34 F.3d 551, 559 (CA7 1994) (Posner, C. J., concurring). It distorts reality to say that all of the subtle, factbound assessments that go into determining what it was like to be in the suspect's shoes simply go out the window when it comes time for the "ultimate inquiry," ante, at 112, of how a reasonable person would have assessed the situation. "The state trial court [is] in the unique position, after observing [the defendant] and listening to the evidence presented at trial, to determine whether a reasonable person in [defendant's] position would have felt free to leave the police station." Purvis v. Dugger, 932 F.2d 1413, 1419 (CA11 1991), cert. denied, 503 U.S. 940 (1992). It is only in light of these case-specific determinations that the reasonable person test can be meaningfully applied. See Cooter & Gell v. Hartmarx Corp., supra, at 402 ("Familiar with the issues and litigants, the [trial] court is better situated than the court of appeals to marshal the pertinent facts and apply the factdependent legal standard"). For these reasons, I have no doubt that the state trier of fact is best situated to put himself in the suspect's shoes, and consequently is in a better position to determine what it would have been like for a reasonable man to be in the suspect's shoes. Federal habeas courts, often reviewing the cold record as much as a decade after the initial determination, are in an inferior position to make this assessment. Though some of the state court's factual determinations may, perhaps, be reflected on the record, many of the case-specific assessments that underlie the state trial judge's ultimate determination are subtle, difficult to reduce to writing, and unlikely to be preserved in any meaningful way for review on appeal. "State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect." Brecht v. Abrahamson, 507 U.S. 619, 636 (1993). "Absent indication to the contrary, state courts should be presumed to have applied federal law as faithfully as federal courts." Withrow v. Williams, supra, at 723 (Scalia, J., concurring in part and *120 dissenting in part). We insult our colleagues in the States when we imply, as we do today, that state judges are not sufficiently competent and reliable to make a decision as straightforward as whether a person was in custody for purposes of Miranda. See 507 U.S., at 714 (O'Connor, J., concurring in part and dissenting in part) ("We can depend on law enforcement officials to administer [Miranda] warnings in the first instance and the state courts to provide a remedy when law enforcement officers err").[1] I also see no reason to remand this case to the Ninth Circuit for further analysis. There is no dispute that Thompson came to the police station voluntarily. There is no dispute that he was repeatedly told he could leave the police station at any time. And it is also clear that he left the police station freely at the end of the interrogation. In California v. Beheler, 463 U.S. 1121 (1983) (per curiam), we held that a person is not in custody if "the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by police after a brief interview." Ibid. And in Oregon v. Mathiason, 429 U.S. 492 (1977) (per curiam), we found it "clear" that the defendant was not in Miranda custody where he "came voluntarily to the police *121 station, . . . was immediately informed that he was not under arrest," and "[a]t the close of a[1]20442-hour interview . . . did in fact leave the police station without hindrance." Id., at 495; see also ibid. ("Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect"). Because Thompson cannot establish a Miranda violation even under de novo review, I would resolve that question now, and avoid putting the State of Alaska to the uncertainty and expense of defending for the sixth time in nine years an eminently reasonable judgment secured against a confessed murderer.[2] I respectfully dissent.

Carl Thompson murdered his ex-wife, stabbing her 29 times. He then wrapped her body in chains and a bedspread and tossed the corpse into a water-filled gravel pit. As part of their investigation, police officers in Fairbanks, Alaska, questioned Thompson about his role in the murder, and Thompson confessed. Thompson was repeatedly told that he could leave the interview and was, in fact, permitted to leave at the close of questioning. I believe that the Alaska trial judge—who first decided this question almost a decade ago—was in a far better position than a federal habeas court to determine whether Thompson was "in custody" for purposes of So long as that judgment finds fair support in the record, I would presume that it is correct. I dissent. To determine whether a person is "in custody" under Miranda, "a court must examine all of the circumstances surrounding the interrogation, but `the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on *117 freedom of movement" of the degree associated with a formal arrest.' " "`[T]he only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.' " ). I agree with the majority that a legal standard must be applied by a state trial judge in making the Miranda custody inquiry. In light of our more recent decisions applying 224(d), however, I do not agree that the standards articulated in overruled in part by for distinguishing factual issues from mixed questions of law and fact, dictate a result either way in this case. See, e. g., (198) ; 467 U.S. 102, Because the Miranda custody issue "falls somewhere between a pristine legal standard and a simple historical fact," we must decide, "as a matter of the sound administration of justice, [which] judicial actor is better positioned to decide the issue in question." (198). The state trial judge is, in my estimation, the bestpositioned judicial actor to decide the relatively straightforward and fact-laden question of Miranda custody. See (state "courts are far better equipped than we are to assess the police practices that are highly relevant to the determination whether particular circumstances amount to custodial *118 interrogation"). In making the custody determination, the state trial judge must consider a complex of diverse and case-specific factors in an effort to gain an overall sense of the defendant's situation at the time of the interrogation. These factors include, at a minimum, the location, timing, and length of the interview, the nature and tone of the questioning, whether the defendant came to the place of questioning voluntarily, the use of physical contact or physical restraint, and the demeanor of all of the key players, both during the interview and in any proceedings held in court. In assessing all of these facts, the state trial judge will often take live testimony, consider documentary evidence, and listen to audiotapes or watch videotapes of the interrogation. Assessments of credibility and demeanor are crucial to the ultimate determination, for the trial judge will often have to weigh conflicting accounts of what transpired. The trial judge is also likely to draw inferences, which are similarly entitled to deference, from "physical or documentary evidence or other facts." 470 U.S. 64, 74 (198). The Miranda custody inquiry is thus often a matter of "shades and degrees," 07 U.S. 680, that requires the state trial judge to make any number of "`fact-intensive, close calls.' " Cooter & The majority is quite right that the test contains an objective component—how a "reasonable man in the suspect's position would have understood his situation," at 324—but this alone cannot be dispositive of whether the determination should be reviewed deferentially. See, e. g., Cooter & "[T]he line between pure facts and the application to them of a legal standard that is as non-technical—as commonsensical—as reasonableness is a faint one." United *119 34 F.3d 1, 9 It distorts reality to say that all of the subtle, factbound assessments that go into determining what it was like to be in the suspect's shoes simply go out the window when it comes time for the "ultimate inquiry," ante, at 112, of how a reasonable person would have assessed the situation. "The state trial court [is] in the unique position, after observing [the defendant] and listening to the evidence presented at trial, to determine whether a reasonable person in [defendant's] position would have felt free to leave the police station." cert. denied, 03 U.S. 940 It is only in light of these case-specific determinations that the reasonable person test can be meaningfully applied. See Cooter & For these reasons, I have no doubt that the state trier of fact is best situated to put himself in the suspect's shoes, and consequently is in a better position to determine what it would have been like for a reasonable man to be in the suspect's shoes. Federal habeas courts, often reviewing the cold record as much as a decade after the initial determination, are in an inferior position to make this assessment. Though some of the state court's factual determinations may, perhaps, be reflected on the record, many of the case-specific assessments that underlie the state trial judge's ultimate determination are subtle, difficult to reduce to writing, and unlikely to be preserved in any meaningful way for review on appeal. "State courts are fully qualified to identify constitutional error and evaluate its prejudicial effect." 07 U.S. 619, "Absent indication to the contrary, state courts should be presumed to have applied federal law as faithfully as federal courts." We insult our colleagues in the States when we imply, as we do today, that state judges are not sufficiently competent and reliable to make a decision as straightforward as whether a person was in custody for purposes of Miranda. See 07 U.S., at 714 ("We can depend on law enforcement officials to administer [Miranda] warnings in the first instance and the state courts to provide a remedy when law enforcement officers err").[1] I also see no reason to remand this case to the Ninth Circuit for further analysis. There is no dispute that Thompson came to the police station voluntarily. There is no dispute that he was repeatedly told he could leave the police station at any time. And it is also clear that he left the police station freely at the end of the interrogation. In we held that a person is not in custody if "the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by police after a brief interview." And in we found it "clear" that the defendant was not in Miranda custody where he "came voluntarily to the police *121 station, was immediately informed that he was not under arrest," and "[a]t the close of a[1]20-hour interview did in fact leave the police station without hindrance." at ; see also Because Thompson cannot establish a Miranda violation even under de novo review, I would resolve that question now, and avoid putting the State of Alaska to the uncertainty and expense of defending for the sixth time in nine years an eminently reasonable judgment secured against a confessed murderer.[2] I respectfully dissent.

Justice Thomas

majority

Universal Health Services, Inc. v. United States ex rel. Escobar

2016-06-16

https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/

https://www.courtlistener.com/api/rest/v3/clusters/3213977/

2015-067

The False Claims Act, 31 U.S. C. §3729 et seq., imposes significant penalties on those who defraud the Govern- ment. This case concerns a theory of False Claims Act liability commonly referred to as “implied false certifica- tion.” According to this theory, when a defendant submits a claim, it impliedly certifies compliance with all condi- tions of payment. But if that claim fails to disclose the defendant’s violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the de- fendant has made a misrepresentation that renders the claim “false or fraudulent” under §3729(a)(1)(A). This case requires us to consider this theory of liability and to clarify some of the circumstances in which the False Claims Act imposes liability. We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liabil- ity. Specifically, liability can attach when the defendant submits a claim for payment that makes specific represen- tations about the goods or services provided, but knowingly 2 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading. We further hold that False Claims Act liability for fail- ing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated a condition of payment, not every violation of such a re- quirement gives rise to liability. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be ac- tionable under the False Claims Act. We clarify below how that rigorous materiality requirement should be enforced. Because the courts below interpreted §3729(a)(1)(A) differently, we vacate the judgment and remand so that those courts may apply the approach set out in this opinion. I A Enacted in 1863, the False Claims Act “was originally aimed principally at stopping the massive frauds perpe- trated by large contractors during the Civil War.” United States v. Bornstein, 423 U.S. 303, 309 (1976). “[A] series of sensational congressional investigations” prompted hearings where witnesses “painted a sordid picture of how Cite as: 579 U. S. ____ (2016) 3 Opinion of the Court the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods deliv- ered, and generally robbed in purchasing the necessities of war.” United States v. McNinch, 356 U.S. 595, 599 (1958). Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subject- ing violators to double damages, forfeiture, and up to five years’ imprisonment. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696. Since then, Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims. See 31 U.S. C. §3729(a) (imposing civil liability on “any person who . . . knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”). A “claim” now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See §3729(b)(2)(A). The Act’s scienter re- quirement defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the information.” §3729(b)(1)(A). And the Act defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” §3729(b)(4). Congress also has increased the Act’s civil penalties so that liability is “essentially punitive in nature.” Vermont Agency of Natural Resources v. United States ex rel. Ste- vens, 529 U.S. 765, 784 (2000). Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. §3729(a); 28 CFR §85.3(a)(9) (2015) (adjusting penalties for inflation). 4 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court B The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal pro- gram in which healthcare providers serve poor or disabled patients and submit claims for government reimburse- ment. See generally 42 U.S. C. §1396 et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services at Arbour Counseling Ser- vices, a satellite mental health facility in Lawrence, Massa- chusetts, owned and operated by a subsidiary of peti- tioner Universal Health Services. Beginning in 2004, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 2009, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitaliza- tion. In October 2009, she suffered another seizure and died. She was 17 years old. Thereafter, an Arbour counselor revealed to respondents Carmen Correa and Julio Escobar—Yarushka’s mother and stepfather—that few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal. Respondents discovered that, of the five professionals who had treated Yarushka, only one was properly licensed. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D., but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision. Rather than Cite as: 579 U. S. ____ (2016) 5 Opinion of the Court ensuring supervision of unlicensed staff, the clinic’s direc- tor helped to misrepresent the staff ’s qualifications. And the problem went beyond those who treated Yarushka. Some 23 Arbour employees lacked licenses to provide mental health services, yet—despite regulatory require- ments to the contrary—they counseled patients and pre- scribed drugs without supervision. When submitting reimbursement claims, Arbour used payment codes corresponding to different services that its staff provided to Yaruskha, such as “Individual Therapy” and “family therapy.” 1 Ohio App. 19, 20. Staff members also misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. For instance, one Arbour staff member who treated Yaruskha registered for a num- ber associated with “ ‘Social Worker, Clinical,’ ” despite lacking the credentials and licensing required for social workers engaged in mental health counseling. 1 id., at 32. After researching Arbour’s operations, respondents filed complaints with various Massachusetts agencies. Massa- chusetts investigated and ultimately issued a report de- tailing Arbour’s violation of over a dozen Massachusetts Medicaid regulations governing the qualifications and supervision required for staff at mental health facili- ties. Arbour agreed to a remedial plan, and two Arbour employees also entered into consent agreements with Massachusetts. In 2011, respondents filed a qui tam suit in federal court, see 31 U.S. C. §3730, alleging that Universal Health had violated the False Claims Act under an im- plied false certification theory of liability. The operative complaint asserts that Universal Health (acting through Arbour) submitted reimbursement claims that made representations about the specific services provided by 6 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifi- cations and licensing requirements for these services.1 Specifically, the Massachusetts Medicaid program re- quires satellite facilities to have specific types of clinicians on staff, delineates licensing requirements for particular positions (like psychiatrists, social workers, and nurses), and details supervision requirements for other staff. See 130 Code Mass. Regs. §§429.422–424, 429.439 (2014). Universal Health allegedly flouted these regulations because Arbour employed unqualified, unlicensed, and unsupervised staff. The Massachusetts Medicaid pro- gram, unaware of these deficiencies, paid the claims. Universal Health thus allegedly defrauded the program, which would not have reimbursed the claims had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff. The United States declined to intervene. The District Court granted Universal Health’s motion to dismiss the complaint. Circuit precedent had previously embraced the implied false certification theory of liability. See, e.g., United States ex rel. Hutcheson v. Blackstone Medical, Inc., 647 F.3d 377, 385–387 (CA1 2011). But the District Court held that respondents had failed to state a claim under that theory because, with one exception not relevant here, none of the regulations that Arbour violated was a condition of payment. See 2014 WL 1271757, *1, *6–*12 (D Mass., Mar. 26, 2014). The United States Court of Appeals for the First Circuit reversed in relevant part and remanded. 780 F.3d 504, 517 (2015). The court observed that each time a billing —————— 1 Although Universal Health submitted some of the claims at issue before 2009, we assume—as the parties have done—that the 2009 amendments to the False Claims Act apply here. Universal Health does not argue, and we thus do not consider, whether pre-2009 conduct should be treated differently. Cite as: 579 U. S. ____ (2016) 7 Opinion of the Court party submits a claim, it “implicitly communicate[s] that it conformed to the relevant program requirements, such that it was entitled to payment.” Id., at 514, n. 14. To determine whether a claim is “false or fraudulent” based on such implicit communications, the court explained, it “asks simply whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment.” Id., at 512. In the court’s view, a statutory, regulatory, or contractual requirement can be a condition of payment either by ex- pressly identifying itself as such or by implication. Id., at 512–513. The court then held that Universal Health had violated Massachusetts Medicaid regulations that “clearly impose conditions of payment.” Id., at 513. The court further held that the regulations themselves “constitute[d] dispositive evidence of materiality,” because they identi- fied adequate supervision as an “express and absolute” condition of payment and “repeated[ly] reference[d]” su- pervision. Id., at 514 (internal quotation marks omitted). We granted certiorari to resolve the disagreement among the Courts of Appeals over the validity and scope of the implied false certification theory of liability. 577 U. S. ___ (2015). The Seventh Circuit has rejected this theory, reasoning that only express (or affirmative) falsehoods can render a claim “false or fraudulent” under 31 U.S. C. §3729(a)(1)(A). United States v. Sanford-Brown, Ltd., 788 F.3d 696, 711–712 (2015). Other courts have accepted the theory, but limit its application to cases where defendants fail to disclose violations of expressly designated condi- tions of payment. E.g., Mikes v. Straus, 274 F.3d 687, 700 (CA2 2011). Yet others hold that conditions of payment need not be expressly designated as such to be a basis for False Claims Act liability. E.g., United States v. Science Applications Int’l Corp., 626 F.3d 1257, 1269 (CADC 2010) (SAIC). 8 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court II We first hold that the implied false certification theory can, at least in some circumstances, provide a basis for liability. By punishing defendants who submit “false or fraudulent claims,” the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions. When, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contrac- tual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided. To reach this conclusion, “[w]e start, as always, with the language of the statute.” Allison Engine Co. v. United States ex rel. Sanders, 553 U.S. 662, 668 (2008) (brackets in original; internal quotation marks omitted). 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.” §3729(a)(1)(A). Congress did not define what makes a claim “false” or “fraudulent.” But “[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Sekhar v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3) (internal quotation marks omitted). And the term “fraudulent” is a paradig- matic example of a statutory term that incorporates the common-law meaning of fraud. See Neder v. United States, 527 U.S. 1, 22 (1999) (the term “actionable ‘fraud’” is one with “a well-settled meaning at common law”).2 —————— 2 The False Claims Act abrogates the common law in certain respects. For instance, the Act’s scienter requirement “require[s] no proof of specific intent to defraud.” 31 U.S. C. §3729(b)(1)(B). But we presume that Congress retained all other elements of common-law fraud that are consistent with the statutory text because there are no textual indicia to the contrary. See Neder, 527 U.S., at 24–25. Cite as: 579 U. S. ____ (2016) 9 Opinion of the Court Because common-law fraud has long encompassed cer- tain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability. Brief for Petitioner 30–31; Brief for Respondents 22–31; Brief for United States as Amicus Curiae 16–20. The parties instead dispute whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constitutes such an actionable misrepresentation. Respondents and the Government invoke the common-law rule that, while nondisclosure alone ordinarily is not actionable, “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter” is actionable. Restatement (Second) of Torts §529, p. 62 (1976). They contend that every submission of a claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim mislead- ing. Universal Health, on the other hand, argues that submitting a claim involves no representations, and that a different common-law rule thus governs: nondisclosure of legal violations is not actionable absent a special “ ‘duty . . . to exercise reasonable care to disclose the matter in question,’ ” which it says is lacking in Government con- tracting. Brief for Petitioner 31 (quoting Restatement (Second) of Torts §551(1), at 119). We need not resolve whether all claims for payment implicitly represent that the billing party is legally enti- tled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying 10 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court information—can be actionable misrepresentations.3 A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. Co. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672, 674 (1931) (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit represen- tation that the land to be conveyed was subject to no others, and certainly subject to no others materially affect- ing the value of the purchase.” Ibid. Likewise, an appli- cant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts §682, pp. 702–703, and n. 14 (2d ed. 2011) (citing Sarvis v. Vermont State Colleges, 172 Vt. 76, 78, 80–82, 772 A.2d 494, 496, 497–499 (2001)). So too here, by submitting claims for payment using payment codes that corresponded to specific counseling services, Universal Health represented that it had pro- vided individual therapy, family therapy, preventive medica- tion counseling, and other types of treatment. Moreover, Arbour staff members allegedly made further representa- tions in submitting Medicaid reimbursement claims by using National Provider Identification numbers corre- sponding to specific job titles. And these representations —————— 3 This rule recurs throughout the common law. In tort law, for exam- ple, “if the defendant does speak, he must disclose enough to prevent his words from being misleading.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §106, p. 738 (5th ed. 1984). Contract law also embraces this principle. See, e.g., Restate- ment (Second) of Contracts §161, Comment a, p. 432 (1979). And we have used this definition in other statutory contexts. See, e.g., Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 44 (2011) (securities law). Cite as: 579 U. S. ____ (2016) 11 Opinion of the Court were clearly misleading in context. Anyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably—but wrongly—conclude that the clinic had complied with core Massachusetts Medicaid requirements (1) that a counselor “treating children [is] required to have specialized training and experience in children’s services,” 130 Code Mass. Regs. §429.422, and also (2) that, at a minimum, the social worker possesses the prescribed qualifications for the job, §429.424(C). By using payment and other codes that conveyed this information without disclosing Arbour’s many violations of basic staff and licensing requirements for mental health facilities, Universal Health’s claims constituted misrepresentations. Accordingly, we hold that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.4 III The second question presented is whether, as Universal Health urges, a defendant should face False Claims Act liability only if it fails to disclose the violation of a contrac- tual, statutory, or regulatory provision that the Govern- —————— 4 As an alternative argument, Universal Health asserts that mislead- ing partial disclosures constitute fraudulent misrepresentations only when the initial statement partially disclosed unfavorable information. Not so. “[A] statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.” Restatement (Second) of Torts, §529, Comment a, pp. 62–63 (1976). 12 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ment expressly designated a condition of payment. We conclude that the Act does not impose this limit on liabil- ity. But we also conclude that not every undisclosed viola- tion of an express condition of payment automatically triggers liability. Whether a provision is labeled a condi- tion of payment is relevant to but not dispositive of the materiality inquiry. A Nothing in the text of the False Claims Act sup- ports Universal Health’s proposed restriction. Section 3729(a)(1)(A) imposes liability on those who present “false or fraudulent claims” but does not limit such claims to misrepresentations about express conditions of payment. See SAIC, 626 F.3d, at 1268 (rejecting any textual basis for an express-designation rule). Nor does the common- law meaning of fraud tether liability to violating an ex- press condition of payment. A statement that misleadingly omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the im- portance of the qualifying information. Supra, at 9–11. The False Claims Act’s materiality requirement also does not support Universal Health. Under the Act, the misrepresentation must be material to the other party’s course of action. But, as discussed below, see infra, at 15– 17, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Cf. Matrixx Initiatives, Inc. v. Siracusano, 563 U.S. 27, 39 (2011) (materiality cannot rest on “a single fact or occurrence as always determina- tive” (internal quotation marks omitted)). Nor does the Act’s scienter requirement, §3729(b)(1)(A), support Universal Health’s position. A defendant can have “actual knowledge” that a condition is material with- out the Government expressly calling it a condition of payment. If the Government failed to specify that guns it Cite as: 579 U. S. ____ (2016) 13 Opinion of the Court orders must actually shoot, but the defendant knows that the Government routinely rescinds contracts if the guns do not shoot, the defendant has “actual knowledge.” Like- wise, because a reasonable person would realize the im- perative of a functioning firearm, a defendant’s failure to appreciate the materiality of that condition would amount to “deliberate ignorance” or “reckless disregard” of the “truth or falsity of the information” even if the Govern- ment did not spell this out. Universal Health nonetheless contends that False Claims Act liability should be limited to undisclosed viola- tions of expressly designated conditions of payment to provide defendants with fair notice and to cabin liability. But policy arguments cannot supersede the clear statutory text. Kloeckner v. Solis, 568 U. S. ___, ___–___, n. 4 (2012) (slip op., at 13–14, n. 4). In any event, Universal Health’s approach risks undercutting these policy goals. The Gov- ernment might respond by designating every legal re- quirement an express condition of payment. But billing parties are often subject to thousands of complex statutory and regulatory provisions. Facing False Claims Act liabil- ity for violating any of them would hardly help would-be defendants anticipate and prioritize compliance obliga- tions. And forcing the Government to expressly designate a provision as a condition of payment would create further arbitrariness. Under Universal Health’s view, misrepre- senting compliance with a requirement that the Govern- ment expressly identified as a condition of payment could expose a defendant to liability. Yet, under this theory, misrepresenting compliance with a condition of eligibility to even participate in a federal program when submitting a claim would not. Moreover, other parts of the False Claims Act allay Universal Health’s concerns. “[I]nstead of adopting a circumscribed view of what it means for a claim to be false or fraudulent,” concerns about fair notice and open-ended 14 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court liability “can be effectively addressed through strict en- forcement of the Act’s materiality and scienter require- ments.” SAIC, supra, at 1270. Those requirements are rigorous. B As noted, a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act. We now clarify how that materiality requirement should be enforced. Section 3729(b)(4) defines materiality using language that we have employed to define materiality in other federal fraud statutes: “[T]he term ‘material’ means hav- ing a natural tendency to influence, or be capable of influ- encing, the payment or receipt of money or property.” See Neder, 527 U.S., at 16 (using this definition to interpret the mail, bank, and wire fraud statutes); Kungys v. United States, 485 U.S. 759, 770 (1988) (same for fraudulent statements to immigration officials). This materiality requirement descends from “common-law antecedents.” Id., at 769. Indeed, “the common law could not have con- ceived of ‘fraud’ without proof of materiality.” Neder, supra, at 22; see also Brief for United States as Amicus Curiae 30 (describing common-law principles and arguing that materiality under the False Claims Act should in- volve a “similar approach”). We need not decide whether §3729(a)(1)(A)’s materiality requirement is governed by §3729(b)(4) or derived directly from the common law. Under any understanding of the concept, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepre- sentation.” 26 R. Lord, Williston on Contracts §69:12, p. 549 (4th ed. 2003) (Williston). In tort law, for instance, a “matter is material” in only two circumstances: (1) “[if ] a reasonable man would attach importance to [it] in deter- Cite as: 579 U. S. ____ (2016) 15 Opinion of the Court mining his choice of action in the transaction”; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter “in determining his choice of action,” even though a reasonable person would not. Restatement (Second) of Torts §538, at 80. Materiality in contract law is substan- tially similar. See Restatement (Second) of Contracts §162(2), and Comment c, pp. 439, 441 (1979) (“[A] misrep- resentation is material” only if it would “likely . . . induce a reasonable person to manifest his assent,” or the defend- ant “knows that for some special reason [the representa- tion] is likely to induce the particular recipient to manifest his assent” to the transaction).5 The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute,” Alli- son Engine, 553 U.S., at 672, or a vehicle for punishing garden-variety breaches of contract or regulatory viola- tions. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defend- —————— 5 Accord, Williston §69:12, pp. 549–550 (“most popular” understand- ing is “that a misrepresentation is material if it concerns a matter to which a reasonable person would attach importance in determining his or her choice of action with respect to the transaction involved: which will induce action by a complaining party[,] knowledge of which would have induced the recipient to act differently” (footnote omitted)); id., at 550 (noting rule that “a misrepresentation is material if, had it not been made, the party complaining of fraud would not have taken the action alleged to have been induced by the misrepresentation”); Junius Constr. Co. v. Cohen, 257 N.Y. 393, 400, 178 N.E. 672, 674 (1931) (a misrepresentation is material if it “went to the very essence of the bargain”); cf. Neder v. United States, 527 U.S. 1, 16, 22, n. 5 (1999) (relying on “ ‘natural tendency to influence’ ” standard and citing Restatement (Second) of Torts §538 definition of materiality). 16 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. See United States ex rel. Marcus v. Hess, 317 U.S. 537, 543 (1943) (contractors’ misrepresentation that they satisfied a non-collusive bidding requirement for federal program contracts violated the False Claims Act because “[t]he government’s money would never have been placed in the joint fund for payment to respondents had its agents known the bids were collusive”); see also Junius Constr., 257 N.Y., at 400, 178 N. E., at 674 (an undisclosed fact was material because “[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood” of the undisclosed fact). In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly iden- tify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of material- ity can include, but is not necessarily limited to, evidence that the defendant knows that the Government consis- tently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Govern- ment pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particu- lar type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the re- quirements are not material.6 —————— 6 We reject Universal Health’s assertion that materiality is too fact intensive for courts to dismiss False Claims Act cases on a motion to dismiss or at summary judgment. The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particular- ity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, Cite as: 579 U. S. ____ (2016) 17 Opinion of the Court These rules lead us to disagree with the Government’s and First Circuit’s view of materiality: that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be enti- tled to refuse payment were it aware of the violation. See Brief for United States as Amicus Curiae 30; Tr. of Oral Arg. 43 (Government’s “test” for materiality “is whether the person knew that the government could lawfully with- hold payment”); 780 F.3d, at 514; see also Tr. of Oral Arg. 26, 29 (statements by respondents’ counsel endorsing this view). At oral argument, the United States explained the implications of its position: If the Government contracts for health services and adds a requirement that contrac- tors buy American-made staplers, anyone who submits a claim for those services but fails to disclose its use of foreign staplers violates the False Claims Act. To the Government, liability would attach if the defendant’s use of foreign staplers would entitle the Government not to pay the claim in whole or part—irrespective of whether the Government routinely pays claims despite knowing that foreign staplers were used. Id., at 39–45. Likewise, if the Government required contractors to aver their compli- ance with the entire U. S. Code and Code of Federal Regu- lations, then under this view, failing to mention noncom- pliance with any of those requirements would always be material. The False Claims Act does not adopt such an extraordinarily expansive view of liability. * * * Because both opinions below assessed respondents’ complaint based on interpretations of §3729(a)(1)(A) that differ from ours, we vacate the First Circuit’s judgment and remand the case for reconsideration of whether re- spondents have sufficiently pleaded a False Claims Act —————— pleading facts to support allegations of materiality. 18 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court violation. See Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. ___, ___ (2015) (slip op., at 19). We emphasize, however, that the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations. This case centers on allegations of fraud, not medical malpractice. Respondents have alleged that Universal Health misrepresented its compliance with mental health facility requirements that are so central to the provision of mental health counseling that the Medi- caid program would not have paid these claims had it known of these violations. Respondents may well have adequately pleaded a violation of §3729(a)(1)(A). But we leave it to the courts below to resolve this in the first instance. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered

The False Claims Act, 31 U.S. C. et seq., imposes significant penalties on those who defraud the Govern- ment. This case concerns a theory of False Claims Act liability commonly referred to as “implied false certifica- tion.” According to this theory, when a defendant submits a claim, it impliedly certifies compliance with all condi- tions of payment. But if that claim fails to disclose the defendant’s violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the de- fendant has made a misrepresentation that renders the claim “false or fraudulent” under (a)(1)(A). This case requires us to consider this theory of liability and to clarify some of the circumstances in which the False Claims Act imposes liability. We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liabil- ity. Specifically, liability can attach when the defendant submits a claim for payment that makes specific represen- tations about the goods or services provided, but knowingly 2 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading. We further hold that False Claims Act liability for fail- ing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated a condition of payment, not every violation of such a re- quirement gives rise to liability. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be ac- tionable under the False Claims Act. We clarify below how that rigorous materiality requirement should be enforced. Because the courts below interpreted (a)(1)(A) differently, we vacate the judgment and remand so that those courts may apply the approach set out in this opinion. I A Enacted in 1863, the False Claims Act “was originally aimed principally at stopping the massive frauds perpe- trated by large contractors during the Civil War.” United “[A] series of sensational congressional investigations” prompted hearings where witnesses “painted a sordid picture of how Cite as: 579 U. S. (16) 3 Opinion of the Court the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods deliv- ered, and generally robbed in purchasing the necessities of war.” United (1958). Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subject- ing violators to double damages, forfeiture, and up to five years’ imprisonment. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696. Since then, Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims. See 31 U.S. C. (a) (imposing civil liability on “any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”). A “claim” now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See (b)(2)(A). The Act’s scienter re- quirement defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the ” (b)(1)(A). And the Act defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” (b)(4). Congress also has increased the Act’s civil penalties so that liability is “essentially punitive in nature.” Vermont Agency of Natural Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. (a); (a)(9) (15) (adjusting penalties for inflation). 4 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court B The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal pro- gram in which healthcare providers serve poor or disabled patients and submit claims for government reimburse- ment. See generally 42 U.S. C. et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services at Arbour Counseling Ser- vices, a satellite mental health facility in Lawrence, Massa- chusetts, owned and operated by a subsidiary of peti- tioner Universal Health Services. Beginning in 04, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 09, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitaliza- tion. In October 09, she suffered another seizure and died. She was 17 years old. Thereafter, an Arbour counselor revealed to respondents Carmen Correa and Julio Escobar—Yarushka’s mother and stepfather—that few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal. Respondents discovered that, of the five professionals who had treated Yarushka, only one was properly licensed. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D., but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision. Rather than Cite as: 579 U. S. (16) 5 Opinion of the Court ensuring supervision of unlicensed staff, the clinic’s direc- tor helped to misrepresent the staff ’s qualifications. And the problem went beyond those who treated Yarushka. Some 23 Arbour employees lacked licenses to provide mental health services, yet—despite regulatory require- ments to the contrary—they counseled patients and pre- scribed drugs without supervision. When submitting reimbursement claims, Arbour used payment codes corresponding to different services that its staff provided to Yaruskha, such as “Individual Therapy” and “family therapy.” Staff members also misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. For instance, one Arbour staff member who treated Yaruskha registered for a num- ber associated with “ ‘Social Worker, Clinical,’ ” despite lacking the credentials and licensing required for social workers engaged in mental health counseling. 1 After researching Arbour’s operations, respondents filed complaints with various Massachusetts agencies. Massa- chusetts investigated and ultimately issued a report de- tailing Arbour’s violation of over a dozen Massachusetts Medicaid regulations governing the qualifications and supervision required for staff at mental health facili- ties. Arbour agreed to a remedial plan, and two Arbour employees also entered into consent agreements with Massachusetts. In 11, respondents filed a qui tam suit in federal court, see 31 U.S. C. alleging that Universal Health had violated the False Claims Act under an im- plied false certification theory of liability. The operative complaint asserts that Universal Health (acting through Arbour) submitted reimbursement claims that made representations about the specific services provided by 6 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifi- cations and licensing requirements for these services.1 Specifically, the Massachusetts Medicaid program re- quires satellite facilities to have specific types of clinicians on staff, delineates licensing requirements for particular positions (like psychiatrists, social workers, and nurses), and details supervision requirements for other staff. See 130 Code Mass. Regs. 429.4 (14). Universal Health allegedly flouted these regulations because Arbour employed unqualified, unlicensed, and unsupervised staff. The Massachusetts Medicaid pro- gram, unaware of these deficiencies, paid the claims. Universal Health thus allegedly defrauded the program, which would not have reimbursed the claims had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff. The United States declined to intervene. The District Court granted Universal Health’s motion to dismiss the complaint. Circuit precedent had previously embraced the implied false certification theory of liability. See, e.g., United States ex rel. (CA1 11). But the District Court held that respondents had failed to state a claim under that theory because, with one exception not relevant here, none of the regulations that Arbour violated was a condition of payment. See 14 WL 1271757, *6–2 (D Mass., Mar. 26, 14). The United States Court of Appeals for the First Circuit reversed in relevant part and remanded. 517 (15). The court observed that each time a billing —————— 1 Although Universal Health submitted some of the claims at issue before 09, we assume—as the parties have done—that the 09 amendments to the False Claims Act apply here. Universal Health does not argue, and we thus do not consider, whether pre-09 conduct should be treated differently. Cite as: 579 U. S. (16) 7 Opinion of the Court party submits a claim, it “implicitly communicate[s] that it conformed to the relevant program requirements, such that it was entitled to payment.” To determine whether a claim is “false or fraudulent” based on such implicit communications, the court explained, it “asks simply whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment.” In the court’s view, a statutory, regulatory, or contractual requirement can be a condition of payment either by ex- pressly identifying itself as such or by implication. at 512–513. The court then held that Universal Health had violated Massachusetts Medicaid regulations that “clearly impose conditions of payment.” The court further held that the regulations themselves “constitute[d] dispositive evidence of materiality,” because they identi- fied adequate supervision as an “express and absolute” condition of payment and “repeated[ly] reference[d]” su- pervision. We granted certiorari to resolve the disagreement among the Courts of Appeals over the validity and scope of the implied false certification theory of liability. 577 U. S. (15). The Seventh Circuit has rejected this theory, reasoning that only express (or affirmative) falsehoods can render a claim “false or fraudulent” under 31 U.S. C. (a)(1)(A). United States v. Sanford-Brown, Ltd., 788 F.3d 696, 711–712 (15). Other courts have accepted the theory, but limit its application to cases where defendants fail to disclose violations of expressly designated condi- tions of payment. E.g., (CA2 11). Yet others hold that conditions of payment need not be expressly designated as such to be a basis for False Claims Act liability. E.g., United (CADC 10) (). 8 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court II We first hold that the implied false certification theory can, at least in some circumstances, provide a basis for liability. By punishing defendants who submit “false or fraudulent claims,” the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions. When, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contrac- tual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided. To reach this conclusion, “[w]e start, as always, with the language of the statute.” Allison (08) (brackets in original; internal quotation marks omitted). 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.” (a)(1)(A). Congress did not define what makes a claim “false” or “fraudulent.” But “[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Sekhar v. United States, 570 U. S. (13) (slip op., at 3) (internal quotation marks omitted). And the term “fraudulent” is a paradig- matic example of a statutory term that incorporates the common-law meaning of fraud. See (the term “actionable ‘fraud’” is one with “a well-settled meaning at common law”).2 —————— 2 The False Claims Act abrogates the common law in certain respects. For instance, the Act’s scienter requirement “require[s] no proof of specific intent to defraud.” 31 U.S. C. (b)(1)(B). But we presume that Congress retained all other elements of common-law fraud that are consistent with the statutory text because there are no textual indicia to the contrary. See –25. Cite as: 579 U. S. (16) 9 Opinion of the Court Because common-law fraud has long encompassed cer- tain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability. Brief for Petitioner 30–31; Brief for Respondents –31; Brief for United States as Amicus Curiae 16–. The parties instead dispute whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constitutes such an actionable misrepresentation. Respondents and the Government invoke the common-law rule that, while nondisclosure alone ordinarily is not actionable, “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter” is actionable. Restatement (Second) of Torts p. 62 They contend that every submission of a claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim mislead- ing. Universal Health, on the other hand, argues that submitting a claim involves no representations, and that a different common-law rule thus governs: nondisclosure of legal violations is not actionable absent a special “ ‘duty to exercise reasonable care to disclose the matter in question,’ ” which it says is lacking in Government con- tracting. Brief for Petitioner 31 (quoting Restatement (Second) of Torts at 119). We need not resolve whether all claims for payment implicitly represent that the billing party is legally enti- tled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying 10 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court information—can be actionable misrepresentations.3 A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit represen- tation that the land to be conveyed was subject to no others, and certainly subject to no others materially affect- ing the value of the purchase.” Likewise, an appli- cant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts pp. 702–703, and n. 14 (2d ed. 11) (citing 78, 80–82, (01)). So too here, by submitting claims for payment using payment codes that corresponded to specific counseling services, Universal Health represented that it had pro- vided individual therapy, family therapy, preventive medica- tion counseling, and other types of treatment. Moreover, Arbour staff members allegedly made further representa- tions in submitting Medicaid reimbursement claims by using National Provider Identification numbers corre- sponding to specific job titles. And these representations —————— 3 This rule recurs throughout the common law. In tort law, for exam- ple, “if the defendant does speak, he must disclose enough to prevent his words from being misleading.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts p. 738 (5th ed. 1984). Contract law also embraces this principle. See, e.g., Restate- ment (Second) of Contracts Comment a, p. 432 (1979). And we have used this definition in other statutory contexts. See, e.g., Matrixx Initiatives, (11) Cite as: 579 U. S. (16) 11 Opinion of the Court were clearly misleading in context. Anyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably—but wrongly—conclude that the clinic had complied with core Massachusetts Medicaid requirements (1) that a counselor “treating children [is] required to have specialized training and experience in children’s services,” 130 Code Mass. Regs. §429.4, and also (2) that, at a minimum, the social worker possesses the prescribed qualifications for the job, By using payment and other codes that conveyed this information without disclosing Arbour’s many violations of basic staff and licensing requirements for mental health facilities, Universal Health’s claims constituted misrepresentations. Accordingly, we hold that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.4 III The second question presented is whether, as Universal Health urges, a defendant should face False Claims Act liability only if it fails to disclose the violation of a contrac- tual, statutory, or regulatory provision that the Govern- —————— 4 As an alternative argument, Universal Health asserts that mislead- ing partial disclosures constitute fraudulent misrepresentations only when the initial statement partially disclosed unfavorable Not so. “[A] statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.” Restatement (Second) of Torts, Comment a, pp. 62–63 12 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ment expressly designated a condition of payment. We conclude that the Act does not impose this limit on liabil- ity. But we also conclude that not every undisclosed viola- tion of an express condition of payment automatically triggers liability. Whether a provision is labeled a condi- tion of payment is relevant to but not dispositive of the materiality inquiry. A Nothing in the text of the False Claims Act sup- ports Universal Health’s proposed restriction. Section 3729(a)(1)(A) imposes liability on those who present “false or fraudulent claims” but does not limit such claims to misrepresentations about express conditions of payment. See (rejecting any textual basis for an express-designation rule). Nor does the common- law meaning of fraud tether liability to violating an ex- press condition of payment. A statement that misleadingly omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the im- portance of the qualifying at 9–11. The False Claims Act’s materiality requirement also does not support Universal Health. Under the Act, the misrepresentation must be material to the other party’s course of action. But, as discussed below, see infra, at 15– 17, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Cf. Matrixx Initiatives, Inc. v. Siracusano, (11) (materiality cannot rest on “a single fact or occurrence as always determina- tive” ). Nor does the Act’s scienter requirement, (b)(1)(A), support Universal Health’s position. A defendant can have “actual knowledge” that a condition is material with- out the Government expressly calling it a condition of payment. If the Government failed to specify that guns it Cite as: 579 U. S. (16) 13 Opinion of the Court orders must actually shoot, but the defendant knows that the Government routinely rescinds contracts if the guns do not shoot, the defendant has “actual knowledge.” Like- wise, because a reasonable person would realize the im- perative of a functioning firearm, a defendant’s failure to appreciate the materiality of that condition would amount to “deliberate ignorance” or “reckless disregard” of the “truth or falsity of the information” even if the Govern- ment did not spell this out. Universal Health nonetheless contends that False Claims Act liability should be limited to undisclosed viola- tions of expressly designated conditions of payment to provide defendants with fair notice and to cabin liability. But policy arguments cannot supersede the clear statutory text. Kloeckner v. Solis, 568 U. S. –, n. 4 (12) (slip op., at 13–14, n. 4). In any event, Universal Health’s approach risks undercutting these policy goals. The Gov- ernment might respond by designating every legal re- quirement an express condition of payment. But billing parties are often subject to thousands of complex statutory and regulatory provisions. Facing False Claims Act liabil- ity for violating any of them would hardly help would-be defendants anticipate and prioritize compliance obliga- tions. And forcing the Government to expressly designate a provision as a condition of payment would create further arbitrariness. Under Universal Health’s view, misrepre- senting compliance with a requirement that the Govern- ment expressly identified as a condition of payment could expose a defendant to liability. Yet, under this theory, misrepresenting compliance with a condition of eligibility to even participate in a federal program when submitting a claim would not. Moreover, other parts of the False Claims Act allay Universal Health’s concerns. “[I]nstead of adopting a circumscribed view of what it means for a claim to be false or fraudulent,” concerns about fair notice and open-ended 14 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court liability “can be effectively addressed through strict en- forcement of the Act’s materiality and scienter require- ments.” Those requirements are rigorous. B As noted, a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act. We now clarify how that materiality requirement should be enforced. Section 3729(b)(4) defines materiality using language that we have employed to define materiality in other federal fraud statutes: “[T]he term ‘material’ means hav- ing a natural tendency to influence, or be capable of influ- encing, the payment or receipt of money or property.” See (using this definition to interpret the mail, bank, and wire fraud statutes); (same for fraudulent statements to immigration officials). This materiality requirement descends from “common-law antecedents.” Indeed, “the common law could not have con- ceived of ‘fraud’ without proof of materiality.” at ; see also Brief for United States as Amicus Curiae 30 (describing common-law principles and arguing that materiality under the False Claims Act should in- volve a “similar approach”). We need not decide whether (a)(1)(A)’s materiality requirement is governed by (b)(4) or derived directly from the common law. Under any understanding of the concept, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepre- sentation.” 26 R. Lord, Williston on Contracts p. 549 (4th ed. 03) (Williston). In tort law, for instance, a “matter is material” in only two circumstances: (1) “[if ] a reasonable man would attach importance to [it] in deter- Cite as: 579 U. S. (16) 15 Opinion of the Court mining his choice of action in the transaction”; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter “in determining his choice of action,” even though a reasonable person would not. Restatement (Second) of Torts at 80. Materiality in contract law is substan- tially similar. See Restatement (Second) of Contracts and Comment c, pp. 4, 1 (1979) (“[A] misrep- resentation is material” only if it would “likely induce a reasonable person to manifest his assent,” or the defend- ant “knows that for some special reason [the representa- tion] is likely to induce the particular recipient to manifest his assent” to the transaction).5 The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute,” Alli- son or a vehicle for punishing garden-variety breaches of contract or regulatory viola- tions. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defend- —————— 5 Accord, Williston pp. 549–550 (“most popular” understand- ing is “that a misrepresentation is material if it concerns a matter to which a reasonable person would attach importance in determining his or her choice of action with respect to the transaction involved: which will induce action by a complaining party[,] knowledge of which would have induced the recipient to act differently” (footnote omitted)); at 550 (noting rule that “a misrepresentation is material if, had it not been made, the party complaining of fraud would not have taken the action alleged to have been induced by the misrepresentation”); Junius Constr. (a misrepresentation is material if it “went to the very essence of the bargain”); cf. v. United States, 16, n. 5 (relying on “ ‘natural tendency to influence’ ” standard and citing Restatement (Second) of Torts definition of materiality). 16 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. See United States ex rel. (1943) (contractors’ misrepresentation that they satisfied a non-collusive bidding requirement for federal program contracts violated the False Claims Act because “[t]he government’s money would never have been placed in the joint fund for payment to respondents had its agents known the bids were collusive”); see also Junius Constr., 257 N.Y., at 178 N. E., at (an undisclosed fact was material because “[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood” of the undisclosed fact). In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly iden- tify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of material- ity can include, but is not necessarily limited to, evidence that the defendant knows that the Government consis- tently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Govern- ment pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particu- lar type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the re- quirements are not material.6 —————— 6 We reject Universal Health’s assertion that materiality is too fact intensive for courts to dismiss False Claims Act cases on a motion to dismiss or at summary judgment. The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particular- ity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, Cite as: 579 U. S. (16) 17 Opinion of the Court These rules lead us to disagree with the Government’s and First Circuit’s view of materiality: that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be enti- tled to refuse payment were it aware of the violation. See Brief for United States as Amicus Curiae 30; Tr. of Oral Arg. 43 (Government’s “test” for materiality “is whether the person knew that the government could lawfully with- hold payment”); 780 F.3d, ; see also Tr. of Oral Arg. 26, 29 (statements by respondents’ counsel endorsing this view). At oral argument, the United States explained the implications of its position: If the Government contracts for health services and adds a requirement that contrac- tors buy American-made staplers, anyone who submits a claim for those services but fails to disclose its use of foreign staplers violates the False Claims Act. To the Government, liability would attach if the defendant’s use of foreign staplers would entitle the Government not to pay the claim in whole or part—irrespective of whether the Government routinely pays claims despite knowing that foreign staplers were used. at –45. Likewise, if the Government required contractors to aver their compli- ance with the entire U. S. Code and Code of Federal Regu- lations, then under this view, failing to mention noncom- pliance with any of those requirements would always be material. The False Claims Act does not adopt such an extraordinarily expansive view of liability. * * * Because both opinions below assessed respondents’ complaint based on interpretations of (a)(1)(A) that differ from ours, we vacate the First Circuit’s judgment and remand the case for reconsideration of whether re- spondents have sufficiently pleaded a False Claims Act —————— pleading facts to support allegations of materiality. 18 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court violation. See Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. (15) (slip op., at 19). We emphasize, however, that the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations. This case centers on allegations of fraud, not medical malpractice. Respondents have alleged that Universal Health misrepresented its compliance with mental health facility requirements that are so central to the provision of mental health counseling that the Medi- caid program would not have paid these claims had it known of these violations. Respondents may well have adequately pleaded a violation of (a)(1)(A). But we leave it to the courts below to resolve this in the first instance. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered

Justice Kennedy

majority

Ramdass v. Angelone

2000-06-12

https://www.courtlistener.com/opinion/118374/ramdass-v-angelone/

https://www.courtlistener.com/api/rest/v3/clusters/118374/

1999-073

Petitioner received a death sentence in the Commonwealth of Virginia for murder in the course of robbery. On review of a decision denying relief in federal habeas corpus, he seeks to set aside the death sentence in reliance on Simmons v. South Carolina, 512 U.S. 154 (1994). He argues the jury should have been instructed of his parole ineligibility based on prior criminal convictions. We reject his claims and conclude Simmons is inapplicable to petitioner since he was not parole ineligible when the jury considered his case, nor would he have been parole ineligible by reason of a conviction in the case then under consideration by the jury. He is not entitled to the relief he seeks. I Sometime after midnight on September 2, 1992, Mohammed Kayani was working as a convenience store clerk. Petitioner Bobby Lee Ramdass and his accomplices entered the store and forced the customers to the floor at gunpoint. While petitioner ordered Kayani to open the store's safe, accomplices took the customers' wallets, money from the cash registers, cigarettes, Kool Aid, and lottery tickets. When Kayani fumbled in an initial attempt to open the safe, petitioner squatted next to him and yelled at him to open the safe. At close range he held the gun to Kayani's head and pulled the trigger. The gun did not fire at first; but petitioner tried again and shot Kayani just above his left ear, killing him. Petitioner stood over the body and laughed. He later inquired of an accomplice why the customers were not killed as well. *160 The murder of Kayani was no isolated incident. Just four months earlier, after serving time for a 1988 robbery conviction, petitioner had been released on parole and almost at once engaged in a series of violent crimes. In July, petitioner committed a murder in Alexandria, Virginia. On August 25, petitioner and three accomplices committed an armed robbery of a Pizza Hut restaurant, abducting one of the victims. Four days later, petitioner and an accomplice pistol-whipped and robbed a hotel clerk. On the afternoon of August 30, petitioner and two accomplices robbed a taxicab driver, Emanuel Selassie, shot him in the head, and left him for dead. Through major surgery and after weeks of unconsciousness, Selassie survived. The same day as the Selassie shooting, petitioner committed an armed robbery of a Domino's Pizza restaurant. The crime spree ended with petitioner's arrest on September 11, 1992, nine days after the Kayani shooting. Petitioner faced a series of criminal prosecutions. For reasons we discuss later, the sequence of events in the criminal proceedings is important to the claim petitioner makes in this Court. Under Virginia law, a conviction does not become final in the trial court until two steps have occurred. First, the jury must return a guilty verdict; and, second, some time thereafter, the judge must enter a final judgment of conviction and pronounce sentence, unless he or she determines to set the verdict aside. On December 15, 1992, a jury returned a guilty verdict based on the Pizza Hut robbery. On January 7, 1993, a jury rendered a guilty verdict for the Domino's robbery; on January 22, the trial court entered a judgment of conviction on the Pizza Hut verdict; on January 30, the sentencing phase of the Kayani murder trial was completed, with the jury recommending that petitioner be sentenced to death for that crime; and on February 18, the trial court entered judgment on the Domino's verdict. After his capital trial for the Kayani killing, petitioner pleaded guilty to the July murder in Alexandria and to the shooting of *161 Selassie. Thus, at the time of the capital sentencing trial, a final judgment of conviction had been entered for the Pizza Hut crime; a jury had found petitioner guilty of the Domino's crime, but the trial court had not entered a final judgment of conviction; and charges in the Alexandria murder had not yet been filed, and indeed petitioner had denied any role in the crime until sometime after the sentencing phase in the instant case. At the sentencing phase of the capital murder trial for Kayani's murder, the Commonwealth submitted the case to the jury using the future dangerousness aggravating circumstance, arguing that the death penalty should be imposed because Ramdass "would commit criminal acts of violence that would constitute a continuing serious threat to society." Va. Code Ann. § 19.2-264.4(C) (1993). Petitioner countered by arguing that he would never be released from jail, even if the jury refused to sentence him to death. For this proposition, Ramdass relied on the sentences he would receive for the crimes detailed above, including those which had yet to go to trial and those (such as the Domino's crime) for which no judgment had been entered and no sentence had been pronounced. Counsel argued petitioner "is going to jail for the rest of his life. . . . I ask you to give him life. Life, he will never see the light of day . . . ." App. 85. At another point, counsel argued: "`Ramdass will never be out of jail. Your sentence today will insure that if he lives to be a hundred and twenty two, he will spend the rest of his life in prison.' " 187 F.3d 396, 400 (CA4 1999). These arguments drew no objection from the Commonwealth. The prosecution's case at sentencing consisted of an account of some of Ramdass' prior crimes, including crimes for which Ramdass had not yet been charged or tried, such as the shooting of Selassie and the assault of the hotel clerk. Investigators of Ramdass' crimes, an accomplice, and two victims provided narrative descriptions of the crime spree preceding the murder, and their evidence of those crimes *162 was the basis for the prosecution's case in the sentencing hearing. Evidence of the crime spree did not depend on formal convictions for its admission. The prosecutor, moreover, did not mention the Domino's crime in his opening statement and did not introduce evidence of the crime during the Commonwealth's case in chief. App. 8-47. Ramdass himself first injected the Domino's crime into the sentencing proceeding, testifying in response to his own lawyer's questions about his involvement in the crime. In closing, the prosecutor argued that Ramdass could not live by the rules of society "either here or in prison." Id., at 86. During the juror deliberations, the jury sent a note to the judge asking: "`[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?' " Id., at 88. Petitioner's counsel suggested the following response: "` "You must not concern yourself with matters that will occur after you impose your sentence, but you may impose [sic] that your sentence will be the legal sentence imposed in the case."` " Id., at 89. The trial judge refused the instruction, relying on the then-settled Virginia law that parole is not an appropriate factor for the jury to consider, and informed the jury that they "`are not to concern [them]selves with what may happen afterwards.' " Id., at 91. The next day the jury returned its verdict recommending the death sentence. Virginia law permitted the judge to give a life sentence despite the jury's recommendation; and two months later the trial court conducted a hearing to decide whether the jury's recommended sentence would be imposed. During the interval between the jury trial and the court's sentencing hearing, final judgment had been entered on the Domino's conviction. At the court's sentencing hearing, Ramdass' counsel argued for the first time that his prior convictions rendered him ineligible for parole under Virginia's threestrikes law, which denies parole to a person convicted of three separate felony offenses of murder, rape, or armed *163 robbery, which were not part of a common act, transaction, or scheme. Va. Code Ann. § 53.1-151(B1) (1993). Petitioner's counsel also stated that three jurors contacted by petitioner's counsel after the verdict expressed the opinion that a life sentence would have been imposed had they known Ramdass would not be eligible for parole. These jurors were not identified by name, were not produced for testimony, and provided no formal or sworn statements supporting defense counsel's representations. App. 95. Rejecting petitioner's arguments for a life sentence, the trial court sentenced petitioner to death. Ramdass appealed, arguing that his parole ineligibility, as he characterized it, should have been disclosed to the jury. The Virginia Supreme Court rejected the claim, applying its settled law "that a jury should not hear evidence of parole eligibility or ineligibility because it is not a relevant consideration in fixing the appropriate sentence." Ramdass v. Commonwealth, 246 Va. 413, 426, 437 S.E.2d 566, 573 (1993). The court did not address whether Ramdass had waived the claim by failing to mention the three-strikes law at trial or by not objecting to the instructions that were given. Other Virginia capital defendants in Ramdass' position had been raising the issue at trial, despite existing Virginia law to the contrary. E. g., Mickens v. Commonwealth, 249 Va. 423, 424, 457 S.E.2d 9, 10 (1995); O'Dell v. Thompson, 502 U.S. 995, 996-997, n. 3 (1991) (Blackmun, J., respecting denial of certiorari); Mueller v. Commonwealth, 244 Va. 386, 408-409, 422 S.E.2d 380, 394 (1992); Eaton v. Commonwealth, 240 Va. 236, 244, 397 S.E.2d 385, 390 (1990). From the State Supreme Court's denial of his claims on direct review, Ramdass filed a petition for a writ of certiorari in this Court. One of his arguments was that the judge should have instructed the jury that he was ineligible for parole. While the petition was pending, we decided Simmons v. South Carolina, 512 U.S. 154 (1994), which held that where a defendant was parole ineligible under state law at *164 the time of the jury's death penalty deliberations, the jury should have been informed of that fact. We granted Ramdass' petition for certiorari and remanded the case for reconsideration in light of Simmons. Ramdass v. Virginia, 512 U.S. 1217 (1994). On remand, the Virginia Supreme Court affirmed Ramdass' death sentence, concluding that Simmons applied only if Ramdass was ineligible for parole when the jury was considering his sentence. Ramdass v. Commonwealth, 248 Va. 518, 450 S.E.2d 360 (1994). The court held that Ramdass was not parole ineligible when the jury considered his sentence because the Kayani murder conviction was not his third conviction for purposes of the three-strikes law. In a conclusion not challenged here, the court did not count the 1988 robbery conviction as one which qualified under the three-strikes provision. (It appears the crime did not involve use of a weapon.) The court also held the Domino's robbery did not count as a conviction because no final judgment had been entered on the verdict. Thus, the only conviction prior to the Kayani murder verdict counting as a strike at the time of the sentencing trial was for the Pizza Hut robbery. Unless the three-strikes law was operative, Ramdass was eligible for parole because, at the time of his trial, murder convicts became eligible for parole in 25 years. Va. Code Ann. § 53.1-151(C) (1993). Under state law, then, Ramdass was not parole ineligible at the time of sentencing; and the Virginia Supreme Court declined to apply Simmons to reverse Ramdass' sentence. Ramdass filed a petition for a writ of certiorari contending that the Virginia Supreme Court misapplied Simmons, and we denied certiorari. Ramdass v. Virginia, 514 U.S. 1085 (1995). After an unsuccessful round of postconviction proceedings in Virginia courts, Ramdass sought habeas corpus relief in federal court. He argued once more that the Virginia Supreme Court erred in not applying Simmons. The District Court granted relief. 28 F. Supp. 2d 343 (ED Va. *165 1998). The Court of Appeals reversed. 187 F.3d, at 407. When Ramdass filed a third petition for a writ of certiorari, we stayed his execution, 528 U.S. 1015 (1999), and granted certiorari, 528 U.S. 1068 (2000). Ramdass contends he was entitled to a jury instruction of parole ineligibility under the Virginia three-strikes law. Rejecting the contention, we now affirm. II Petitioner bases his request for habeas corpus relief on Simmons, supra. The premise of the Simmons case was that, under South Carolina law, the capital defendant would be ineligible for parole if the jury were to vote for a life sentence. Future dangerousness being at issue, the plurality opinion concluded that due process entitled the defendant to inform the jury of parole ineligibility, either by a jury instruction or in arguments by counsel. In our later decision in O'Dell v. Netherland, 521 U.S. 151, 166 (1997), we held that Simmons created a new rule for purposes of Teague v. Lane, 489 U.S. 288 (1989). O'Dell reaffirmed that the States have some discretion in determining the extent to which a sentencing jury should be advised of probable future custody and parole status in a future dangerousness case, subject to the rule of Simmons. We have not extended Simmons to cases where parole ineligibility has not been established as a matter of state law at the time of the jury's future dangerousness deliberations in a capital case. Whether Ramdass may obtain relief under Simmons is governed by the habeas corpus statute, 28 U.S. C. § 2254(d)(1) (1994 ed., Supp. III), which forbids relief unless the statecourt adjudication of a federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As explained in Justice O'Connor's opinion for the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule *166 that contradicts our prior holdings or if it reaches a different result from one of our cases despite confronting indistinguishable facts. The statute also authorizes federal habeas corpus relief if, under clearly established federal law, a state court has been unreasonable in applying the governing legal principle to the facts of the case. A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled. The Virginia Supreme Court's ruling in the case before us was neither contrary to Simmons nor an unreasonable application of its rationale. Petitioner contends his case is indistinguishable from Simmons, making the Virginia Supreme Court's refusal to grant relief contrary to that case. In his view the Pizza Hut conviction and the Domino's guilty verdict classified him, like the Simmons petitioner, as ineligible for parole when the jury deliberated his sentence. He makes this argument even though the Virginia Supreme Court declared that he was not parole ineligible at the time of the sentencing trial because no judgment of conviction had been entered for the Domino's crime. Simmons created a workable rule. The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law. 512 U.S., at 156 (plurality opinion) (limiting holding to situations where "state law prohibits the defendant's release on parole"); id., at 165, n. 5 (relying on fact that Simmons was "ineligible for parole under state law"); id., at 176 (O'Connor, J., concurring) (citing state statutes to demonstrate that for Simmons "the only available alternative sentence to death . . . was life imprisonment without [the] possibility of parole"). The instruction was required in Simmons because it was agreed that "an instruction informing the jury *167 that petitioner is ineligible for parole is legally accurate." Id., at 166. In this case, a Simmons instruction would not have been accurate under the law; for the authoritative determination of the Virginia Supreme Court is that petitioner was not ineligible for parole when the jury considered his sentence. In Simmons the defendant had "conclusively established" his parole ineligibility at the time of sentencing. Id., at 158. Ramdass had not. In Simmons, a sentence had been imposed for the defendant's prior conviction and he pleaded guilty. Ramdass' Domino's case was tried to a jury and no sentence had been imposed. While a South Carolina defendant might challenge a guilty plea, the grounds for doing so are limited, see Rivers v. Strickland, 264 S. C. 121, 124, 213 S.E.2d 97, 98 (1975) ("The general rule is that a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses, including claims of violation of constitutional rights prior to the plea"); see also Whetsell v. South Carolina, 276 S. C. 295, 296, 277 S.E.2d 891, 892 (1981), and, in all events, such a motion cannot seek to set aside a jury verdict or be considered a post-trial motion, for there was no trial or jury verdict in the case. 512 U.S., at 156. Simmons further does not indicate that South Carolina law considered a guilty plea and sentence insufficient to render the defendant parole ineligible upon conviction of another crime. Material differences exist between this case and Simmons, and the Virginia Supreme Court's decision is not contrary to the rule Simmons announced. Ramdass makes two arguments to equate his own case with Simmons. Neither contention refutes the critical point that he was not ineligible for parole as a matter of state law at the time of his sentencing trial. First he contends that the Simmons petitioner was not parole ineligible at the time of his sentencing trial. According to Ramdass, a South Carolina prisoner is not parole ineligible until the State *168 Board of Probation makes a formal determination of parole ineligibility and the state board had not done so when the capital sentencing jury fixed Simmons' penalty. This argument is without merit. Virginia does not argue that Ramdass was parole eligible because a parole board had not acted. It argues Ramdass was still parole eligible at the time of the sentencing trial by reason of his then criminal record as it stood under state law. We further note that Ramdass bases his argument on briefs and the record filed in Simmons. A failure by a state court to glean information from the record of a controlling decision here and to refine further holdings accordingly does not necessarily render the state-court ruling "contrary to, or . . . an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." § 2254(d)(1). On review of state decisions in habeas corpus, state courts are responsible for a faithful application of the principles set out in the controlling opinion of the Court. Second, Ramdass argues Simmons allowed a prisoner to obtain a parole-ineligibility instruction even though "hypothetical future events" (such as escape, pardon, or a change in the law) might mean the prisoner would, at some point, be released from prison. This argument is likewise of no assistance to Ramdass. The Simmons petitioner was, as a matter of state law, ineligible for parole at the time of the sentencing trial. The State was left to argue that future events might change this status or otherwise permit Simmons to reenter society. Id., at 166. Ramdass' situation is just the opposite. He was eligible for parole at the time of his sentencing trial and is forced to argue that a hypothetical future event (the entry of judgment on the Domino's convictions) would render him parole ineligible under state law, despite his current parole-eligible status. This case is not parallel to Simmons on the critical point. The differences between the cases foreclose the conclusion that the Virginia *169 Supreme Court's decision denying Ramdass relief was contrary to Simmons. Ramdass contends the Virginia Supreme Court nevertheless was bound to extend Simmons to cover his circumstances. He urges us to ignore the legal rules dictating his parole eligibility under state law in favor of what he calls a functional approach, under which, it seems, a court evaluates whether it looks like the defendant will turn out to be parole ineligible. We do not agree that the extension of Simmons is either necessary or workable; and we are confident in saying that the Virginia Supreme Court was not unreasonable in refusing the requested extension. Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison. Petitioner's proposed rule would require courts to evaluate the probability of future events in cases where a three-strikes law is the issue. Among other matters, a court will have to consider whether a trial court in an unrelated proceeding will grant postverdict relief, whether a conviction will be reversed on appeal, or whether the defendant will be prosecuted for fully investigated yet uncharged crimes. If the inquiry is to include whether a defendant will, at some point, be released from prison, even the age or health of a prisoner facing a long period of incarceration would seem relevant. The possibilities are many, the certainties few. If the Simmons rule is extended beyond when a defendant is, as a matter of state law, parole ineligible at the time of his trial, the State might well conclude that the jury would be distracted from the other vital issues in the case. The States are entitled to some latitude in this field, for the admissibility of evidence at capital sentencing was, and remains, an issue left to the States, subject of course to federal requirements, especially, as relevant here, those related to the admission of mitigating evidence. Id., at 168; California v. Ramos, 463 U.S. 992 (1983). *170 By eliminating Simmons ` well-understood rule, petitioner's approach would give rise to litigation on a peripheral point. Parole eligibility may be unrelated to the circumstances of the crime the jury is considering or the character of the defendant, except in an indirect way. Evidence of potential parole ineligibility is of uncertain materiality, as it can be overcome if a jury concludes that even if the defendant might not be paroled, he may escape to murder again, see Garner v. Jones, 529 U.S. 244 (2000); he may be pardoned; he may benefit from a change in parole laws; some other change in the law might operate to invalidate a conviction once thought beyond review, see Bousley v. United States, 523 U.S. 614 (1998); or he may be no less a risk to society in prison, see United States v. Battle, 173 F.3d 1343 (CA11 1999), cert. denied, 529 U.S. 1022 (2000). The Virginia Supreme Court had good reason not to extend Simmons beyond the circumstances of that case, which included conclusive proof of parole ineligibility under state law at the time of sentencing. A jury evaluating future dangerousness under Virginia law considers all of the defendant's recent criminal history, without being confined to convictions. As we have pointed out, the Domino's Pizza conviction was not even a part of the prosecution's main case in the sentencing proceedings. Parole ineligibility, on the other hand, does relate to formal criminal proceedings. The Commonwealth is entitled to some deference, in the context of its own parole laws, in determining the best reference point for making the ineligibility determination. Given the damaging testimony of the criminal acts in the spree Ramdass embarked upon in the weeks before the Kayani murder, it is difficult to say just what weight a jury would or should have given to the possibility of parole; and it was not error for the Commonwealth to insist upon an accurate assessment of the parole rules by using a trial court judgment as the measuring point. *171 As we have explained, the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial. Ramdass did not because of the judicial determination Virginia uses to establish a conviction's finality under its parole law. We note that Virginia's rule using judgment in the Domino's case to determine parole ineligibility is not arbitrary by virtue of Virginia's also allowing evidence of the defendant's prior criminal history. To demonstrate Ramdass' evil character and his propensity to commit violent acts in the future, the prosecutor used Ramdass' prior criminal conduct, supported in some cases (although not in the Domino's case) by evidence in the form of the resulting jury verdicts. Virginia law did not require a guilty verdict, a criminal judgment, or the exhaustion of an appeal before prior criminal conduct could be introduced at trial. Virginia law instead permitted unadjudicated prior bad acts to be introduced as evidence at trial. See Watkins v. Commonwealth, 229 Va. 469, 487, 331 S.E.2d 422, 435 (1985). For example, the prosecutor was permitted to use the shooting of Selassie in aggravation, even though no verdict had been rendered in that case. The prosecutor likewise asked Ramdass about the July murder in Alexandria. App. 64. (Despite Ramdass' sworn denial, he pleaded guilty to the crime after being sentenced to death in this case.) The guilty verdict of the jury in the Domino's case, therefore, was not a necessary prerequisite to the admissibility of the conduct underlying the Domino's crime. Ramdass, furthermore, could not object to the Commonwealth's use of the Domino's crime at sentencing, for it was he who introduced the evidence. The Commonwealth did not mention the crime in its opening statement and did not present evidence of the crime in its case in chief. Ramdass used the Domino's crime to argue he would never be out of jail; and he overused the crime even for that purpose. Counsel advised the jury the Domino's crime would result in *172 "[a]t least another life sentence," when in fact the sentence imposed was for 18 years. Id., at 50. The various public opinion polls to which we are pointed cast no doubt upon the rule adopted by the Commonwealth. We are referred, for example, to a poll whose result is reported in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev. 211 (1987). The poll is said to permit the conclusion that 67% of potential jurors would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible. The poll is not a proper consideration in this Court. Mere citation of a law review to a court does not suffice to introduce into evidence the truth of the hearsay or the so-called scientific conclusions contained within it. Had the creators of the poll taken the stand in support of the poll's application to Ramdass' case, the poll likely would have been demonstrated to be inadmissible. The poll's reporters concede the poll was limited in scope, surveying 40 individuals eligible for jury service. Id., at 221. The poll was limited to jurors in one Georgia county, jurors who would never serve on a Fairfax County, Virginia, jury. The poll was supervised by the Southern Prisoners' Defense Committee, a group having an interest in obtaining life sentences for the inmates it represents. The poll was conducted in the context of ongoing litigation of a particular defendant's death sentence. The article makes no reference to any independent source confirming the propriety of the sampling methodology. The poll asked but four questions. It failed to ask those who were surveyed why they held the views that they did or to ascertain their reaction to evidence supplied by the prosecution designed to counter the parole information. No data indicate the questions were framed using methodology employed by reliable pollsters. No indication exists regarding the amount of time participants were given to answer. *173 The reporters of the poll contend other similar, limited studies support the results, yet those studies were conducted over the telephone "by defense attorneys in connection with motions for new trials." Id., at 223, n. 35. These, and other, deficiencies have been relied upon by courts with factfinding powers to exclude or minimize survey evidence. E. g., Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252, 264 (CA5 1980) (inadequate survey universe); Dreyfus Fund, Inc. v. Royal Bank of Canada, 525 F. Supp. 1108, 1116 (SDNY 1981) (unreliable sampling technique); General Motors Corp. v. Cadillac Marine & Boat Co., 226 F. Supp. 716, 737 (WD Mich. 1964) (only 150 people surveyed); Kingsford Products Co. v. Kingsfords, Inc., 715 F. Supp. 1013, 1016 (Kan. 1989) (sample drawn from wrong area); Conagra, Inc. v. Geo. A. Hormel & Co., 784 F. Supp. 700, 726 (Neb. 1992) (survey failed to ask the reasons why the participant provided the answer he selected); Sterling Drug, Inc. v. Bayer AG, 792 F. Supp. 1357, 1373 (SDNY 1992) (questions not properly drafted); American Home Products Corp. v. Proctor & Gamble Co., 871 F. Supp. 739, 761 (NJ 1994) (respondents given extended time to answer); Gucci v. Gucci Shops, Inc., 688 F. Supp. 916, 926 (SDNY 1988) (surveys should be conducted by recognized independent experts); Schering Corp. v. Schering Aktiengesellschaft, 667 F. Supp. 175, 189 (NJ 1987) (attorney contact and interference invalidates poll); see generally Toys "R" Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F. Supp. 1189 (EDNY 1983) (listing factors to consider in determining whether a survey is reliable). The poll reported in the Columbia Human Rights Law Review should not be considered by this Court. See Stanford v. Kentucky, 492 U.S. 361, 377 (1989) (plurality opinion). It is the Virginia Supreme Court's decision rejecting Ramdass' claims that is under review in this habeas proceeding. It was not required to consult public opinion polls. Ramdass' claim is based on the contention that it is inevitable that a judgment of conviction would be entered for *174 his Domino's crime. He calls the entry of judgment following a jury verdict a "ministerial act whose performance was foreseeable, imminent, and inexorable." Brief for Petitioner 21, 36. Petitioner cites no authority for the proposition that a judicial officer's determination that final judgment should be entered (as opposed to the clerk's noting of the final judgment in the record) is a ministerial act. We are not surprised. We doubt most lawyers would consider a criminal case concluded in the trial court before judgment is entered, for it is judgment which signals that the case has become final and is about to end or reach another stage of proceedings. See Va. Sup. Ct. Rule 1:1, 5A:6 (1999) (requiring notice of appeal to be filed "within 30 days after entry of final judgment"). Post-trial motions are an essential part of Virginia criminal law practice, as discussed in leading treatises such as J. Costello, Virginia Criminal Law and Procedure 829 (2d ed. 1995), and R. Bacigal, Virginia Criminal Procedure 337 (2d ed. 1989). Under Virginia Supreme Court Rule 3A:15(b) (1999), a verdict of guilty may be set aside "for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction." A few examples from the reports of Virginia decisions demonstrate it to be well-established procedure in Virginia for trial courts to consider and grant motions to set aside jury verdicts. E. g., Floyd v. Commonwealth, 219 Va. 575, 576-577, 249 S.E.2d 171, 172 (1978); Payne v. Commonwealth, 220 Va. 601, 602-603, 260 S.E.2d 247, 248 (1979); Johnson v. Commonwealth, 20 Va. App. 547, 553, 458 S.E.2d 599, 601 (1995); Walker v. Commonwealth, 4 Va. App. 286, 291, 356 S.E.2d 853, 856 (1987); Gorham v. Commonwealth, 15 Va. App. 673, 674, 426 S.E.2d 493, 494 (1993); Carter v. Commonwealth, 10 Va. App. 507, 509, 393 S.E.2d 639, 640 (1990); Cullen v. Commonwealth, 13 Va. App. 182, 184, 409 S.E.2d 487, 488 (1991). *175 The motion to set aside may be filed and resolved before judgment is entered, e. g., Walker, supra, at 291, 356 S.E.2d, at 856, and trial courts may conduct hearings or allow evidence to be introduced on these motions. Postverdict motions may be granted despite the denial of a motion to strike the evidence made during trial, e. g., Gorham, supra, at 674, 426 S.E.2d, at 494, or after denial of a pretrial motion to dismiss, Cullen, supra, at 184, 409 S.E.2d, at 488. Federal judges familiar with Virginia practice have held that postverdict motions give a defendant a full and fair opportunity to raise claims of trial error, DiPaola v. Riddle, 581 F.2d 1111, 1113 (CA4 1978). In contexts beyond the threestrikes statute, Virginia courts have held that the possibility of postverdict relief renders a jury verdict uncertain and unreliable until judgment is entered. E. g., Dowell v. Commonwealth, 12 Va. App. 1145, 408 S.E.2d 263, 265 (1991); see also Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922); Blair v. Commonwealth, 66 Va. 850, 858, 861 (1874) (availability of postverdict motions means it is at the defendant's option whether to "let judgment be entered in regular order"). In one recent case, the Virginia Court of Appeals relied on Rule 3A:15 to hold, contrary to petitioner's contention here, that it is an "incorrect statement of the law" to say that the trial court has no concern with the proceedings after the jury's verdict. Davis v. Commonwealth, No. 2960-98-2, 2000 WL 135148, *4, n. 1 (Va. App., Feb. 8, 2000) (unpublished). The time for Ramdass to file a motion to set aside the Domino's verdict had not expired when the jury was deliberating on the sentence for Kayani's murder; and he concedes he could have filed postverdict motions. The Domino's case was pending in a different county from the Kayani murder trial and the record contains no indication that Ramdass' counsel advised the judge in the Kayani case that he would not pursue postverdict relief in the Domino's case. The Virginia Supreme Court was reasonable to reject a paroleineligibility *176 instruction for a defendant who would become ineligible only in the event a trial judge in a different county entered final judgment in an unrelated criminal case. Ramdass complains that the Virginia Supreme Court's selection of the entry of judgment rather than the jury verdict is arbitrary. He points out that a trial court may set the judgment aside within 21 days after its entry. Va. Sup. Ct. Rule 1:1 (1999). Appeal is also permitted. We agree with Ramdass that the availability of postjudgment relief in the trial court or on appeal renders uncertain the finality and reliability of even a judgment in the trial court. Our own jurisprudence under Teague v. Lane, for example, does not consider a Virginia-state-court conviction final until the direct review process is completed. O'Dell v. Netherland, 521 U. S., at 157. States may take different approaches and we see no support for a rule that would require a State to declare a conviction final for purposes of a three-strikes statute once a verdict has been rendered. Verdicts may be overturned by the state trial court, by a state appellate court, by the state supreme court, by a state court on collateral attack, by a federal court in habeas corpus, or by this Court on review of any of these proceedings. Virginia's approach, which would permit a Simmons instruction despite the availability of postjudgment relief that might, the day after the jury is instructed that the defendant is parole ineligible, undo one of the strikes supporting the instruction, provided Ramdass sufficient protection. A judgment, not a verdict, is the usual measure for finality in the trial court. Our conclusion is confirmed by a review of petitioner's conduct in this litigation. The current claim that it was certain at the time of trial that Ramdass would never be released on parole in the event the jury sentenced him to life is belied by the testimony his counsel elicited from him at sentencing. Ramdass' counsel asked him, "Are you going to spend the rest of your life in prison?" Despite the claim advanced *177 now that parole would be impossible, the answer counsel elicited from Ramdass at trial was, "I don't know." We think Ramdass' answer at trial is an accurate assessment of the uncertainties that surrounded his parole and custody status at the time of trial. In like manner, before the Virginia Supreme Court's decision now challenged as unreasonable, petitioner had not argued that his parole eligibility should have been determined based on the date of the Domino's verdict (January 7, 1993) rather than the date the judgment was entered (February 18, 1993). He did not mention the three-strikes law at trial, although the Domino's verdict had already been returned. Petitioner's brief to the Virginia Supreme Court on remand from this Court conceded that the appropriate date to consider for the Domino's crime was the date of judgment. His brief states Ramdass "was convicted . . . on 18 February 1993 of armed robbery" and that "[o]f course, the . . . 18 February convictio[n] occurred after the jury findings in this case." App. 123-124. Thus the Virginia Supreme Court treated the Domino's conviction in the manner urged by petitioner. Petitioner's change of heart on the controlling date appears based on a belated realization that the 1988 robbery conviction did not qualify as a strike, meaning that he needed the Domino's conviction to count. To accomplish the task, petitioner began arguing that the date of the jury verdict controlled. His original position, however, is the one in accord with Virginia law. State trial judges and appellate courts remain free, of course, to experiment by adopting rules that go beyond the minimum requirements of the Constitution. In this regard, we note that the jury was not informed that Ramdass, at the time of trial, was eligible for parole in 25 years, that the trial judge had the power to override a recommended death sentence, or that Ramdass' prior convictions were subject to being set aside by the trial court or on appeal. Each statement would have been accurate as a matter of law, but each statement might also have made it more probable that the *178 jury would have recommended a death sentence. We further note Virginia has expanded Simmons by allowing a defendant to obtain a Simmons instruction even where the defendant's future dangerousness is not at issue. Yarbrough v. Commonwealth, 258 Va. 347, 519 S.E.2d 602 (1999). Likewise, Virginia has, after Ramdass' conviction, eliminated parole for capital defendants sentenced to life in prison. The combination of Yarbrough and the elimination of parole means that all capital defendants in Virginia now receive a Simmons instruction if they so desire. In circumstances like those presented here, even if some instruction had been given on the subject addressed by Simmons, the extent to which the trial court should have addressed the contingencies that could affect finality of the other convictions is not altogether clear. A full elaboration of the various ways to set a conviction aside or grant a new trial might not have been favorable to the petitioner. In all events the Constitution does not require the instruction that Ramdass now requests. The sentencing proceeding was not invalid by reason of its omission. III The Virginia Supreme Court's decision to deny petitioner relief was neither contrary to, nor an unreasonable application of, Simmons. The United States Court of Appeals for the Fourth Circuit was required to deny him relief under 28 U.S. C. § 2254 (1994 ed. and Supp. III), and we affirm the judgment. It is so ordered. Justice O'Connor, concurring in the judgment.

Petitioner received a death sentence in the Commonwealth of Virginia for murder in the course of robbery. On review of a decision denying relief in federal habeas corpus, he seeks to set aside the death sentence in reliance on He argues the jury should have been instructed of his parole ineligibility based on prior criminal convictions. We reject his claims and conclude is inapplicable to petitioner since he was not parole ineligible when the jury considered his case, nor would he have been parole ineligible by reason of a conviction in the case then under consideration by the jury. He is not entitled to the relief he seeks. I Sometime after midnight on September 2, Mohammed Kayani was working as a convenience store clerk. Petitioner Bobby Lee Ramdass and his accomplices entered the store and forced the customers to the floor at gunpoint. While petitioner ordered Kayani to open the store's safe, accomplices took the customers' wallets, money from the cash registers, cigarettes, Kool Aid, and lottery tickets. When Kayani fumbled in an initial attempt to open the safe, petitioner squatted next to him and yelled at him to open the safe. At close range he held the gun to Kayani's head and pulled the trigger. The gun did not fire at first; but petitioner tried again and shot Kayani just above his left ear, killing him. Petitioner stood over the body and laughed. He later inquired of an accomplice why the customers were not killed as well. *160 The murder of Kayani was no isolated incident. Just four months earlier, after serving time for a 18 robbery conviction, petitioner had been released on parole and almost at once engaged in a series of violent crimes. In July, petitioner committed a murder in Alexandria, Virginia. On August 25, petitioner and three accomplices committed an armed robbery of a Pizza Hut restaurant, abducting one of the victims. Four days later, petitioner and an accomplice pistol-whipped and robbed a hotel clerk. On the afternoon of August 30, petitioner and two accomplices robbed a taxicab driver, Emanuel Selassie, shot him in the head, and left him for dead. Through major surgery and after weeks of unconsciousness, Selassie survived. The same day as the Selassie shooting, petitioner committed an armed robbery of a Domino's Pizza restaurant. The crime spree ended with petitioner's arrest on September 11, nine days after the Kayani shooting. Petitioner faced a series of criminal prosecutions. For reasons we discuss later, the sequence of events in the criminal proceedings is important to the claim petitioner makes in this Court. Under Virginia law, a conviction does not become final in the trial court until two steps have occurred. First, the jury must return a guilty verdict; and, second, some time thereafter, the judge must enter a final judgment of conviction and pronounce sentence, unless he or she determines to set the verdict aside. On December 15, a jury returned a guilty verdict based on the Pizza Hut robbery. On January 7, a jury rendered a guilty verdict for the Domino's robbery; on January 22, the trial court entered a judgment of conviction on the Pizza Hut verdict; on January 30, the sentencing phase of the Kayani murder trial was completed, with the jury recommending that petitioner be sentenced to death for that crime; and on February 18, the trial court entered judgment on the Domino's verdict. After his capital trial for the Kayani killing, petitioner pleaded guilty to the July murder in Alexandria and to the shooting of *161 Selassie. Thus, at the time of the capital sentencing trial, a final judgment of conviction had been entered for the Pizza Hut crime; a jury had found petitioner guilty of the Domino's crime, but the trial court had not entered a final judgment of conviction; and charges in the Alexandria murder had not yet been filed, and indeed petitioner had denied any role in the crime until sometime after the sentencing phase in the instant At the sentencing phase of the capital murder trial for Kayani's murder, the Commonwealth submitted the case to the jury using the future dangerousness aggravating circumstance, arguing that the death penalty should be imposed because Ramdass "would commit criminal acts of violence that would constitute a continuing serious threat to society." (C) Petitioner countered by arguing that he would never be released from jail, even if the jury refused to sentence him to death. For this proposition, Ramdass relied on the sentences he would receive for the crimes detailed above, including those which had yet to go to trial and those (such as the Domino's crime) for which no judgment had been entered and no sentence had been pronounced. Counsel argued petitioner "is going to jail for the rest of his life. I ask you to give him life. Life, he will never see the light of day" App. 85. At another point, counsel argued: "`Ramdass will never be out of jail. Your sentence today will insure that if he lives to be a hundred and twenty two, he will spend the rest of his life in prison.' " These arguments drew no objection from the Commonwealth. The prosecution's case at sentencing consisted of an account of some of Ramdass' prior crimes, including crimes for which Ramdass had not yet been charged or tried, such as the shooting of Selassie and the assault of the hotel clerk. Investigators of Ramdass' crimes, an accomplice, and two victims provided narrative descriptions of the crime spree preceding the murder, and their evidence of those crimes *162 was the basis for the prosecution's case in the sentencing hearing. Evidence of the crime spree did not depend on formal convictions for its admission. The prosecutor, moreover, did not mention the Domino's crime in his opening statement and did not introduce evidence of the crime during the Commonwealth's case in chief. App. 8-47. Ramdass himself first injected the Domino's crime into the sentencing proceeding, testifying in response to his own lawyer's questions about his involvement in the crime. In closing, the prosecutor argued that Ramdass could not live by the rules of society "either here or in prison." During the juror deliberations, the jury sent a note to the judge asking: "`[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?' " Petitioner's counsel suggested the following response: "` "You must not concern yourself with matters that will occur after you impose your sentence, but you may impose [sic] that your sentence will be the legal sentence imposed in the "` " The trial judge refused the instruction, relying on the then-settled Virginia law that parole is not an appropriate factor for the jury to consider, and informed the jury that they "`are not to concern [them]selves with what may happen afterwards.' " The next day the jury returned its verdict recommending the death sentence. Virginia law permitted the judge to give a life sentence despite the jury's recommendation; and two months later the trial court conducted a hearing to decide whether the jury's recommended sentence would be imposed. During the interval between the jury trial and the court's sentencing hearing, final judgment had been entered on the Domino's conviction. At the court's sentencing hearing, Ramdass' counsel argued for the first time that his prior convictions rendered him ineligible for parole under Virginia's threestrikes law, which denies parole to a person convicted of three separate felony offenses of murder, rape, or armed *163 robbery, which were not part of a common act, transaction, or scheme. (B1) Petitioner's counsel also stated that three jurors contacted by petitioner's counsel after the verdict expressed the opinion that a life sentence would have been imposed had they known Ramdass would not be eligible for parole. These jurors were not identified by name, were not produced for testimony, and provided no formal or sworn statements supporting defense counsel's representations. App. 95. Rejecting petitioner's arguments for a life sentence, the trial court sentenced petitioner to death. Ramdass appealed, arguing that his parole ineligibility, as he characterized it, should have been disclosed to the jury. The Virginia Supreme Court rejected the claim, applying its settled law "that a jury should not hear evidence of parole eligibility or ineligibility because it is not a relevant consideration in fixing the appropriate sentence." The court did not address whether Ramdass had waived the claim by failing to mention the three-strikes law at trial or by not objecting to the instructions that were given. Other Virginia capital defendants in Ramdass' position had been raising the issue at trial, despite existing Virginia law to the contrary. E. g., ; ; ; From the State Supreme Court's denial of his claims on direct review, Ramdass filed a petition for a writ of certiorari in this Court. One of his arguments was that the judge should have instructed the jury that he was ineligible for parole. While the petition was pending, we decided which held that where a defendant was parole ineligible under state law at *164 the time of the jury's death penalty deliberations, the jury should have been informed of that fact. We granted Ramdass' petition for certiorari and remanded the case for reconsideration in light of On remand, the Virginia Supreme Court affirmed Ramdass' death sentence, concluding that applied only if Ramdass was ineligible for parole when the jury was considering his sentence. The court held that Ramdass was not parole ineligible when the jury considered his sentence because the Kayani murder conviction was not his third conviction for purposes of the three-strikes In a conclusion not challenged here, the court did not count the 18 robbery conviction as one which qualified under the three-strikes provision. (It appears the crime did not involve use of a weapon.) The court also held the Domino's robbery did not count as a conviction because no final judgment had been entered on the verdict. Thus, the only conviction prior to the Kayani murder verdict counting as a strike at the time of the sentencing trial was for the Pizza Hut robbery. Unless the three-strikes law was operative, Ramdass was eligible for parole because, at the time of his trial, murder convicts became eligible for parole in 25 years. (C) Under state law, then, Ramdass was not parole ineligible at the time of sentencing; and the Virginia Supreme Court declined to apply to reverse Ramdass' sentence. Ramdass filed a petition for a writ of certiorari contending that the Virginia Supreme Court misapplied and we denied certiorari. 514 U.S. 85 After an unsuccessful round of postconviction proceedings in Virginia courts, Ramdass sought habeas corpus relief in federal court. He argued once more that the Virginia Supreme Court erred in not applying The District Court granted relief. The Court of Appeals When Ramdass filed a third petition for a writ of certiorari, we stayed his execution, 528 U.S. 15 and granted certiorari, 528 U.S. 68 Ramdass contends he was entitled to a jury instruction of parole ineligibility under the Virginia three-strikes Rejecting the contention, we now affirm. II Petitioner bases his request for habeas corpus relief on The premise of the case was that, under South Carolina law, the capital defendant would be ineligible for parole if the jury were to vote for a life sentence. Future dangerousness being at issue, the plurality opinion concluded that due process entitled the defendant to inform the jury of parole ineligibility, either by a jury instruction or in arguments by counsel. In our later decision in we held that created a new rule for purposes of O'Dell reaffirmed that the States have some discretion in determining the extent to which a sentencing jury should be advised of probable future custody and parole status in a future dangerousness case, subject to the rule of We have not extended to cases where parole ineligibility has not been established as a matter of state law at the time of the jury's future dangerousness deliberations in a capital Whether Ramdass may obtain relief under is governed by the habeas corpus statute, 28 U.S. C. 2254(d)(1) ( ed., Supp. III), which forbids relief unless the statecourt adjudication of a federal claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." As explained in Justice O'Connor's opinion for the Court in a state court acts contrary to clearly established federal law if it applies a legal rule * that contradicts our prior holdings or if it reaches a different result from one of our cases despite confronting indistinguishable facts. The statute also authorizes federal habeas corpus relief if, under clearly established federal law, a state court has been unreasonable in applying the governing legal principle to the facts of the A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled. The Virginia Supreme Court's ruling in the case before us was neither contrary to nor an unreasonable application of its rationale. Petitioner contends his case is indistinguishable from making the Virginia Supreme Court's refusal to grant relief contrary to that In his view the Pizza Hut conviction and the Domino's guilty verdict classified him, like the petitioner, as ineligible for parole when the jury deliberated his sentence. He makes this argument even though the Virginia Supreme Court declared that he was not parole ineligible at the time of the sentencing trial because no judgment of conviction had been entered for the Domino's crime. created a workable rule. The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state (limiting holding to situations where "state law prohibits the defendant's release on parole"); (relying on fact that was "ineligible for parole under state law"); (citing state statutes to demonstrate that for "the only available alternative sentence to death was life imprisonment without [the] possibility of parole"). The instruction was required in because it was agreed that "an instruction informing the jury *167 that petitioner is ineligible for parole is legally accurate." at In this case, a instruction would not have been accurate under the law; for the authoritative determination of the Virginia Supreme Court is that petitioner was not ineligible for parole when the jury considered his sentence. In the defendant had "conclusively established" his parole ineligibility at the time of sentencing. Ramdass had not. In a sentence had been imposed for the defendant's prior conviction and he pleaded guilty. Ramdass' Domino's case was tried to a jury and no sentence had been imposed. While a South Carolina defendant might challenge a guilty plea, the grounds for doing so are limited, see ; see also (11), and, in all events, such a motion cannot seek to set aside a jury verdict or be considered a post-trial motion, for there was no trial or jury verdict in the further does not indicate that South Carolina law considered a guilty plea and sentence insufficient to render the defendant parole ineligible upon conviction of another crime. Material differences exist between this case and and the Virginia Supreme Court's decision is not contrary to the rule announced. Ramdass makes two arguments to equate his own case with Neither contention refutes the critical point that he was not ineligible for parole as a matter of state law at the time of his sentencing trial. First he contends that the petitioner was not parole ineligible at the time of his sentencing trial. According to Ramdass, a South Carolina prisoner is not parole ineligible until the State *168 Board of Probation makes a formal determination of parole ineligibility and the state board had not done so when the capital sentencing jury fixed ' penalty. This argument is without merit. Virginia does not argue that Ramdass was parole eligible because a parole board had not acted. It argues Ramdass was still parole eligible at the time of the sentencing trial by reason of his then criminal record as it stood under state We further note that Ramdass bases his argument on briefs and the record filed in A failure by a state court to glean information from the record of a controlling decision here and to refine further holdings accordingly does not necessarily render the state-court ruling "contrary to, or an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 2254(d)(1). On review of state decisions in habeas corpus, state courts are responsible for a faithful application of the principles set out in the controlling opinion of the Court. Second, Ramdass argues allowed a prisoner to obtain a parole-ineligibility instruction even though "hypothetical future events" (such as escape, pardon, or a change in the law) might mean the prisoner would, at some point, be released from prison. This argument is likewise of no assistance to Ramdass. The petitioner was, as a matter of state law, ineligible for parole at the time of the sentencing trial. The State was left to argue that future events might change this status or otherwise permit to reenter society. at Ramdass' situation is just the opposite. He was eligible for parole at the time of his sentencing trial and is forced to argue that a hypothetical future event (the entry of judgment on the Domino's convictions) would render him parole ineligible under state law, despite his current parole-eligible status. This case is not parallel to on the critical point. The differences between the cases foreclose the conclusion that the Virginia *169 Supreme Court's decision denying Ramdass relief was contrary to Ramdass contends the Virginia Supreme Court nevertheless was bound to extend to cover his circumstances. He urges us to ignore the legal rules dictating his parole eligibility under state law in favor of what he calls a functional approach, under which, it seems, a court evaluates whether it looks like the defendant will turn out to be parole ineligible. We do not agree that the extension of is either necessary or workable; and we are confident in saying that the Virginia Supreme Court was not unreasonable in refusing the requested extension. applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison. Petitioner's proposed rule would require courts to evaluate the probability of future events in cases where a three-strikes law is the issue. Among other matters, a court will have to consider whether a trial court in an unrelated proceeding will grant postverdict relief, whether a conviction will be reversed on appeal, or whether the defendant will be prosecuted for fully investigated yet uncharged crimes. If the inquiry is to include whether a defendant will, at some point, be released from prison, even the age or health of a prisoner facing a long period of incarceration would seem relevant. The possibilities are many, the certainties few. If the rule is extended beyond when a defendant is, as a matter of state law, parole ineligible at the time of his trial, the State might well conclude that the jury would be distracted from the other vital issues in the The States are entitled to some latitude in this field, for the admissibility of evidence at capital sentencing was, and remains, an issue left to the States, subject of course to federal requirements, especially, as relevant here, those related to the admission of mitigating evidence. ; (13). *170 By eliminating ` well-understood rule, petitioner's approach would give rise to litigation on a peripheral point. Parole eligibility may be unrelated to the circumstances of the crime the jury is considering or the character of the defendant, except in an indirect way. Evidence of potential parole ineligibility is of uncertain materiality, as it can be overcome if a jury concludes that even if the defendant might not be paroled, he may escape to murder again, see 529 U.S. ; he may be pardoned; he may benefit from a change in parole laws; some other change in the law might operate to invalidate a conviction once thought beyond review, see ; or he may be no less a risk to society in prison, see United cert. denied, 529 U.S. 22 The Virginia Supreme Court had good reason not to extend beyond the circumstances of that case, which included conclusive proof of parole ineligibility under state law at the time of sentencing. A jury evaluating future dangerousness under Virginia law considers all of the defendant's recent criminal history, without being confined to convictions. As we have pointed out, the Domino's Pizza conviction was not even a part of the prosecution's main case in the sentencing proceedings. Parole ineligibility, on the other hand, does relate to formal criminal proceedings. The Commonwealth is entitled to some deference, in the context of its own parole laws, in determining the best reference point for making the ineligibility determination. Given the damaging testimony of the criminal acts in the spree Ramdass embarked upon in the weeks before the Kayani murder, it is difficult to say just what weight a jury would or should have given to the possibility of parole; and it was not error for the Commonwealth to insist upon an accurate assessment of the parole rules by using a trial court judgment as the measuring point. *171 As we have explained, the dispositive fact in was that the defendant conclusively established his parole ineligibility under state law at the time of his trial. Ramdass did not because of the judicial determination Virginia uses to establish a conviction's finality under its parole We note that Virginia's rule using judgment in the Domino's case to determine parole ineligibility is not arbitrary by virtue of Virginia's also allowing evidence of the defendant's prior criminal history. To demonstrate Ramdass' evil character and his propensity to commit violent acts in the future, the prosecutor used Ramdass' prior criminal conduct, supported in some cases (although not in the Domino's case) by evidence in the form of the resulting jury verdicts. Virginia law did not require a guilty verdict, a criminal judgment, or the exhaustion of an appeal before prior criminal conduct could be introduced at trial. Virginia law instead permitted unadjudicated prior bad acts to be introduced as evidence at trial. See (15). For example, the prosecutor was permitted to use the shooting of Selassie in aggravation, even though no verdict had been rendered in that The prosecutor likewise asked Ramdass about the July murder in Alexandria. App. 64. (Despite Ramdass' sworn denial, he pleaded guilty to the crime after being sentenced to death in this ) The guilty verdict of the jury in the Domino's case, therefore, was not a necessary prerequisite to the admissibility of the conduct underlying the Domino's crime. Ramdass, furthermore, could not object to the Commonwealth's use of the Domino's crime at sentencing, for it was he who introduced the evidence. The Commonwealth did not mention the crime in its opening statement and did not present evidence of the crime in its case in chief. Ramdass used the Domino's crime to argue he would never be out of jail; and he overused the crime even for that purpose. Counsel advised the jury the Domino's crime would result in * "[a]t least another life sentence," when in fact the sentence imposed was for 18 years. The various public opinion polls to which we are pointed cast no doubt upon the rule adopted by the Commonwealth. We are referred, for example, to a poll whose result is reported in Paduano & Smith, Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty, 18 Colum. Human Rights L. Rev. 211 (17). The poll is said to permit the conclusion that 67% of potential jurors would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible. The poll is not a proper consideration in this Court. Mere citation of a law review to a court does not suffice to introduce into evidence the truth of the hearsay or the so-called scientific conclusions contained within it. Had the creators of the poll taken the stand in support of the poll's application to Ramdass' case, the poll likely would have been demonstrated to be inadmissible. The poll's reporters concede the poll was limited in scope, surveying 40 individuals eligible for jury service. The poll was limited to jurors in one Georgia county, jurors who would never serve on a Fairfax County, Virginia, jury. The poll was supervised by the Southern Prisoners' Defense Committee, a group having an interest in obtaining life sentences for the inmates it represents. The poll was conducted in the context of ongoing litigation of a particular defendant's death sentence. The article makes no reference to any independent source confirming the propriety of the sampling methodology. The poll asked but four questions. It failed to ask those who were surveyed why they held the views that they did or to ascertain their reaction to evidence supplied by the prosecution designed to counter the parole information. No data indicate the questions were framed using methodology employed by reliable pollsters. No indication exists regarding the amount of time participants were given to answer. *173 The reporters of the poll contend other similar, limited studies support the results, yet those studies were conducted over the telephone "by defense attorneys in connection with motions for new trials." These, and other, deficiencies have been relied upon by courts with factfinding powers to exclude or minimize survey evidence. E. g., Amstar (CA5 10) ; Dreyfus Fund, 525 F. Supp. 18, (SDNY 11) ; General Motors ; Kingsford Products 715 F. Supp. 13, 16 ; Conagra, ; Sterling Drug, ; American Home Products ; (SDNY 18) ; Schering (NJ 17) ; see generally Toys "R" Us, 559 F. Supp. 1 (EDNY 13) The poll reported in the Columbia Human Rights Law Review should not be considered by this Court. See It is the Virginia Supreme Court's decision rejecting Ramdass' claims that is under review in this habeas proceeding. It was not required to consult public opinion polls. Ramdass' claim is based on the contention that it is inevitable that a judgment of conviction would be entered for *174 his Domino's crime. He calls the entry of judgment following a jury verdict a "ministerial act whose performance was foreseeable, imminent, and inexorable." Brief for Petitioner 21, 36. Petitioner cites no authority for the proposition that a judicial officer's determination that final judgment should be entered (as opposed to the clerk's noting of the final judgment in the record) is a ministerial act. We are not surprised. We doubt most lawyers would consider a criminal case concluded in the trial court before judgment is entered, for it is judgment which signals that the case has become final and is about to end or reach another stage of proceedings. See Va. Sup. Ct. Rule 1:1, 5A:6 (requiring notice of appeal to be filed "within 30 days after entry of final judgment"). Post-trial motions are an essential part of Virginia criminal law practice, as discussed in leading treatises such as J. Costello, Virginia Criminal Law and Procedure 829 and R. Bacigal, Virginia Criminal Procedure 337 Under Virginia Supreme Court Rule 3A:15(b) a verdict of guilty may be set aside "for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction." A few examples from the reports of Virginia decisions demonstrate it to be well-established procedure in Virginia for trial courts to consider and grant motions to set aside jury verdicts. E. g., ; ; ; (17); S.E.2d 493, ; Va. App. 507, ; 409 S.E.2d *175 The motion to set aside may be filed and resolved before judgment is entered, e. g., at 356 S.E.2d, at and trial courts may conduct hearings or allow evidence to be introduced on these motions. Postverdict motions may be granted despite the denial of a motion to strike the evidence made during trial, e. g., at S.E.2d, at or after denial of a pretrial motion to dismiss, at 409 S.E.2d, at Federal judges familiar with Virginia practice have held that postverdict motions give a defendant a full and fair opportunity to raise claims of trial error, In contexts beyond the threestrikes statute, Virginia courts have held that the possibility of postverdict relief renders a jury verdict uncertain and unreliable until judgment is entered. E. g., ; see also ; In one recent case, the Virginia Court of Appeals relied on Rule 3A:15 to hold, contrary to petitioner's contention here, that it is an "incorrect statement of the law" to say that the trial court has no concern with the proceedings after the jury's verdict. Davis v. Commonwealth, No. 2960--2, The time for Ramdass to file a motion to set aside the Domino's verdict had not expired when the jury was deliberating on the sentence for Kayani's murder; and he concedes he could have filed postverdict motions. The Domino's case was pending in a different county from the Kayani murder trial and the record contains no indication that Ramdass' counsel advised the judge in the Kayani case that he would not pursue postverdict relief in the Domino's The Virginia Supreme Court was reasonable to reject a paroleineligibility *176 instruction for a defendant who would become ineligible only in the event a trial judge in a different county entered final judgment in an unrelated criminal Ramdass complains that the Virginia Supreme Court's selection of the entry of judgment rather than the jury verdict is arbitrary. He points out that a trial court may set the judgment aside within 21 days after its entry. Va. Sup. Ct. Rule 1:1 Appeal is also permitted. We agree with Ramdass that the availability of postjudgment relief in the trial court or on appeal renders uncertain the finality and reliability of even a judgment in the trial court. Our own jurisprudence under for example, does not consider a Virginia-state-court conviction final until the direct review process is completed. States may take different approaches and we see no support for a rule that would require a State to declare a conviction final for purposes of a three-strikes statute once a verdict has been rendered. Verdicts may be overturned by the state trial court, by a state appellate court, by the state supreme court, by a state court on collateral attack, by a federal court in habeas corpus, or by this Court on review of any of these proceedings. Virginia's approach, which would permit a instruction despite the availability of postjudgment relief that might, the day after the jury is instructed that the defendant is parole ineligible, undo one of the strikes supporting the instruction, provided Ramdass sufficient protection. A judgment, not a verdict, is the usual measure for finality in the trial court. Our conclusion is confirmed by a review of petitioner's conduct in this litigation. The current claim that it was certain at the time of trial that Ramdass would never be released on parole in the event the jury sentenced him to life is belied by the testimony his counsel elicited from him at sentencing. Ramdass' counsel asked him, "Are you going to spend the rest of your life in prison?" Despite the claim advanced *177 now that parole would be impossible, the answer counsel elicited from Ramdass at trial was, "I don't know." We think Ramdass' answer at trial is an accurate assessment of the uncertainties that surrounded his parole and custody status at the time of trial. In like manner, before the Virginia Supreme Court's decision now challenged as unreasonable, petitioner had not argued that his parole eligibility should have been determined based on the date of the Domino's verdict rather than the date the judgment was entered He did not mention the three-strikes law at trial, although the Domino's verdict had already been returned. Petitioner's brief to the Virginia Supreme Court on remand from this Court conceded that the appropriate date to consider for the Domino's crime was the date of judgment. His brief states Ramdass "was convicted on 18 February of armed robbery" and that "[o]f course, the 18 February convictio[n] occurred after the jury findings in this " App. 123-124. Thus the Virginia Supreme Court treated the Domino's conviction in the manner urged by petitioner. Petitioner's change of heart on the controlling date appears based on a belated realization that the 18 robbery conviction did not qualify as a strike, meaning that he needed the Domino's conviction to count. To accomplish the task, petitioner began arguing that the date of the jury verdict controlled. His original position, however, is the one in accord with Virginia State trial judges and appellate courts remain free, of course, to experiment by adopting rules that go beyond the minimum requirements of the Constitution. In this regard, we note that the jury was not informed that Ramdass, at the time of trial, was eligible for parole in 25 years, that the trial judge had the power to override a recommended death sentence, or that Ramdass' prior convictions were subject to being set aside by the trial court or on appeal. Each statement would have been accurate as a matter of law, but each statement might also have made it more probable that the *178 jury would have recommended a death sentence. We further note Virginia has expanded by allowing a defendant to obtain a instruction even where the defendant's future dangerousness is not at issue. Likewise, Virginia has, after Ramdass' conviction, eliminated parole for capital defendants sentenced to life in prison. The combination of Yarbrough and the elimination of parole means that all capital defendants in Virginia now receive a instruction if they so desire. In circumstances like those presented here, even if some instruction had been given on the subject addressed by the extent to which the trial court should have addressed the contingencies that could affect finality of the other convictions is not altogether clear. A full elaboration of the various ways to set a conviction aside or grant a new trial might not have been favorable to the petitioner. In all events the Constitution does not require the instruction that Ramdass now requests. The sentencing proceeding was not invalid by reason of its omission. III The Virginia Supreme Court's decision to deny petitioner relief was neither contrary to, nor an unreasonable application of, The United States Court of Appeals for the Fourth Circuit was required to deny him relief under 28 U.S. C. 2254 ( ed. and Supp. III), and we affirm the judgment. It is so ordered. Justice O'Connor, concurring in the judgment.

Justice O'Connor

concurring

Ramdass v. Angelone

2000-06-12

https://www.courtlistener.com/opinion/118374/ramdass-v-angelone/

https://www.courtlistener.com/api/rest/v3/clusters/118374/

1999-073

In Simmons v. South Carolina, 512 U.S. 154 (1994), a majority of the Court held that "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant *179 to inform the capital sentencing jury . . . that he is parole ineligible." Id., at 178 (O'Connor, J., concurring in judgment); see also id., at 163-164 (plurality opinion). Due process requires that "a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " Id., at 175 (O'Connor, J., concurring in judgment) (quoting Skipper v. South Carolina, 476 U.S. 1, 5, n. 1 (1986)). Accordingly, where the State seeks to demonstrate that the defendant poses a future danger to society, he "should be allowed to bring his parole ineligibility to the jury's attention" as a means of rebutting the State's case. 512 U.S., at 177. I have no doubt that Simmons was rightly decided. In this case, because petitioner seeks a writ of habeas corpus rather than the vacatur of his sentence on direct appeal, the scope of our review is governed by 28 U.S. C. § 2254(d)(1) (1994 ed., Supp. III). Accordingly, we may grant relief only if the Virginia Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," ibid.; see also Williams v. Taylor, 529 U.S. 362, 402-409 (2000), which in this case is our holding in Simmons. The Virginia Supreme Court concluded that Simmons was inapplicable because petitioner "was not ineligible for parole when the jury was considering his sentence." Ramdass v. Commonwealth, 248 Va. 518, 521, 450 S.E.2d 360, 361 (1994). The court noted that, under Virginia law, any person who has been convicted of three separate felony offenses of murder, rape, or robbery "by the presenting of firearms or other deadly weapon" "shall not be eligible for parole." Va. Code Ann. § 53.1-151(B1) (1993). It explained that Ramdass was not parole ineligible at the time of his capital sentencing proceeding because the Kayani murder conviction would not constitute his third conviction for purposes of § 53.1-151(B1). Critically, the court held that, although Ramdass had been *180 found guilty of the armed robbery of a Domino's Pizza restaurant, that verdict did not count as a prior conviction under § 53.1-151(B1) because judgment had not yet been entered on that verdict at the time of Ramdass' capital sentencing proceeding. 248 Va., at 520, 450 S. E. 2d, at 361. For the reasons explained in the plurality opinion, the Virginia Supreme Court's decision was neither contrary to, nor an unreasonable application of, our holding in Simmons. Whether a defendant is entitled to inform the jury that he is parole ineligible is ultimately a question of federal law, but we look to state law to determine a defendant's parole status. In Simmons, the defendant had "conclusively establish[ed]" that he was parole ineligible at the time of sentencing, and the "prosecution did not challenge or question [his] parole ineligibility." 512 U.S., at 158. Ramdass, however, was not ineligible for parole when the jury considered his sentence as the relevant court had not yet entered the judgment of conviction for the Domino's Pizza robbery. Were the entry of judgment a purely ministerial act under Virginia law, in the sense that it was foreordained, I would agree with petitioner that "the only available alternative sentence to death [was] life imprisonment without possibility of parole." Id., at 178 (O'Connor, J., concurring in judgment). Such circumstances would be "materially indistinguishable" from the facts of Simmons. See Williams v. Taylor, 529 U. S., at 405. It therefore would have been "contrary to" Simmons for the Virginia Supreme Court to hold that petitioner was not entitled to inform the jury that he would be parole ineligible. See ibid. Where all that stands between a defendant and parole ineligibility under state law is a purely ministerial act, Simmons entitles the defendant to inform the jury of that ineligibility, either by argument or instruction, even if he is not technically "parole ineligible" at the moment of sentencing. Such was not the case here, however. As the plurality opinion explains, the entry of judgment following a criminal *181 conviction in Virginia state court is not a purely ministerial act, i. e., one that is inevitable and foreordained under state law. The Commonwealth allows criminal defendants to file post-trial motions following a guilty verdict, and trial courts may set aside jury verdicts in response to such motions. See ante, at 173-175. Thus, as a matter of Virginia law, a guilty verdict does not inevitably lead to the entry of a judgment order. Consequently, the jury verdict finding petitioner guilty of the Domino's Pizza robbery did not mean that petitioner would necessarily be parole ineligible under state law. Indeed, petitioner himself concedes that there was a "possibility that the Domino's Pizza trial judge could set aside the verdict under Virginia Supreme Court Rule 3A:15(b)." Brief for Petitioner 37. Petitioner nevertheless contends that the possibility that the trial court would set aside the guilty verdict for the Domino's Pizza robbery was quite remote, and therefore that the entry of judgment was extremely likely. But, as the plurality opinion explains, Simmons does not require courts to estimate the likelihood of future contingencies concerning the defendant's parole ineligibility. Rather, Simmons entitles the defendant to inform the capital sentencing jury that he is parole ineligible where the only alternative sentence to death is life without the possibility of parole. And unlike the defendant in Simmons, Ramdass was eligible for parole under state law at the time of his sentencing. For these reasons, I agree that petitioner is not entitled to the issuance of a writ of habeas corpus. As our decision in Williams v. Taylor makes clear, the standard of review dictated by 28 U.S. C. § 2254(d)(1) (1994 ed., Supp. III) is narrower than that applicable on direct review. Applying that standard here, I believe the Virginia Supreme Court's decision was neither contrary to, nor an unreasonable application of, our holding in Simmons. Accordingly, I concur in the judgment.

In a majority of the Court held that "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant *179 to inform the capital sentencing jury that he is parole ineligible." ; see also Due process requires that "a defendant not be sentenced to death `on the basis of information which he had no opportunity to deny or explain.' " ). Accordingly, where the State seeks to demonstrate that the defendant poses a future danger to society, he "should be allowed to bring his parole ineligibility to the jury's attention" as a means of rebutting the State's I have no doubt that Simmons was rightly decided. In this case, because petitioner seeks a writ of habeas corpus rather than the vacatur of his sentence on direct appeal, the scope of our review is governed by 28 U.S. C. 2254(d)(1) ( ed., Supp. III). Accordingly, we may grant relief only if the Virginia Supreme Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," ; see also which in this case is our holding in Simmons. The Virginia Supreme Court concluded that Simmons was inapplicable because petitioner "was not ineligible for parole when the jury was considering his sentence." The court noted that, under Virginia law, any person who has been convicted of three separate felony offenses of murder, rape, or robbery "by the presenting of firearms or other deadly weapon" "shall not be eligible for parole." Va. Code Ann. 53.1-151(B1) (1993). It explained that Ramdass was not parole ineligible at the time of his capital sentencing proceeding because the Kayani murder conviction would not constitute his third conviction for purposes of 53.1-151(B1). Critically, the court held that, although Ramdass had been *180 found guilty of the armed robbery of a Domino's Pizza restaurant, that verdict did not count as a prior conviction under 53.1-151(B1) because judgment had not yet been entered on that verdict at the time of Ramdass' capital sentencing 450 S. E. 2d, at For the reasons explained in the plurality opinion, the Virginia Supreme Court's decision was neither contrary to, nor an unreasonable application of, our holding in Simmons. Whether a defendant is entitled to inform the jury that he is parole ineligible is ultimately a question of federal law, but we look to state law to determine a defendant's parole status. In Simmons, the defendant had "conclusively establish[ed]" that he was parole ineligible at the time of sentencing, and the "prosecution did not challenge or question [his] parole ineligibility." Ramdass, however, was not ineligible for parole when the jury considered his sentence as the relevant court had not yet entered the judgment of conviction for the Domino's Pizza robbery. Were the entry of judgment a purely ministerial act under Virginia law, in the sense that it was foreordained, I would agree with petitioner that "the only available alternative sentence to death [was] life imprisonment without possibility of parole." Such circumstances would be "materially indistinguishable" from the facts of Simmons. See It therefore would have been "contrary to" Simmons for the Virginia Supreme Court to hold that petitioner was not entitled to inform the jury that he would be parole ineligible. See Where all that stands between a defendant and parole ineligibility under state law is a purely ministerial act, Simmons entitles the defendant to inform the jury of that ineligibility, either by argument or instruction, even if he is not technically "parole ineligible" at the moment of sentencing. Such was not the case here, however. As the plurality opinion explains, the entry of judgment following a criminal *181 conviction in Virginia state court is not a purely ministerial act, i. e., one that is inevitable and foreordained under state law. The Commonwealth allows criminal defendants to file post-trial motions following a guilty verdict, and trial courts may set aside jury verdicts in response to such motions. See ante, at 173-175. Thus, as a matter of Virginia law, a guilty verdict does not inevitably lead to the entry of a judgment order. Consequently, the jury verdict finding petitioner guilty of the Domino's Pizza robbery did not mean that petitioner would necessarily be parole ineligible under state law. Indeed, petitioner himself concedes that there was a "possibility that the Domino's Pizza trial judge could set aside the verdict under Virginia Supreme Court Rule 3A:15(b)." Brief for Petitioner 37. Petitioner nevertheless contends that the possibility that the trial court would set aside the guilty verdict for the Domino's Pizza robbery was quite remote, and therefore that the entry of judgment was extremely likely. But, as the plurality opinion explains, Simmons does not require courts to estimate the likelihood of future contingencies concerning the defendant's parole ineligibility. Rather, Simmons entitles the defendant to inform the capital sentencing jury that he is parole ineligible where the only alternative sentence to death is life without the possibility of parole. And unlike the defendant in Simmons, Ramdass was eligible for parole under state law at the time of his sentencing. For these reasons, I agree that petitioner is not entitled to the issuance of a writ of habeas corpus. As our decision in makes clear, the standard of review dictated by 28 U.S. C. 2254(d)(1) ( ed., Supp. III) is narrower than that applicable on direct review. Applying that standard here, I believe the Virginia Supreme Court's decision was neither contrary to, nor an unreasonable application of, our holding in Simmons. Accordingly, I concur in the judgment.

Justice Stevens

dissenting

Ramdass v. Angelone

2000-06-12

https://www.courtlistener.com/opinion/118374/ramdass-v-angelone/

https://www.courtlistener.com/api/rest/v3/clusters/118374/

1999-073

There is an acute unfairness in permitting a State to rely on a recent conviction to establish a defendant's future dangerousness while simultaneously permitting the State to deny that there was such a conviction when the defendant attempts to argue that he is parole ineligible and therefore not a future danger. Even the most miserly reading of the opinions in Simmons v. South Carolina, 512 U.S. 154 (1994), supports the conclusion that this petitioner was denied "one of the hallmarks of due process in our adversary system," namely, the defendant's right "to meet the State's case against him." Id., at 175 (O'Connor, J., concurring in judgment). I In Simmons, we held that "[w]hen the State seeks to show the defendant's future dangerousness . . . the defendant should be allowed to bring his parole ineligibility to the jury's attention—by way of argument by defense counsel or an instruction from the court—as a means of responding to the State's showing of future dangerousness." Id., at 177 (O'Connor, J., concurring in judgment). The present case falls squarely within our holding. There is no question that the Commonwealth argued Ramdass' future dangerousness. Ante, at 161. In doing so, it focused almost entirely on Ramdass' extensive criminal history, emphasizing that his most recent crime spree was committed after his mandatory release on parole.[1] Indeed, *183 the prosecution relied upon the Domino's Pizza robbery—the very crime Virginia has precluded Ramdass from relying upon to establish his parole ineligibility.[2] There is also no question that Ramdass was denied the opportunity to inform the jury of his parole ineligibility. During the sentencing deliberations, the jury asked the following question: "[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?" App. 88. Rather than giving any kind of straightforward answer, and rather than permitting counsel to explain petitioner's parole ineligibility, the court instructed: "[Y]ou should impose such punishment as you feel is just under the evidence . . . . You are not to concern yourselves with what may happen afterwards." Id., at 91. Finally, it is undisputed that the absence of a clear instruction made a difference. The question itself demonstrates that parole ineligibility was important to the jury, and that the jury was confused about whether a "life" sentence truly means life—or whether it means life subject to *184 the possibility of parole. See Simmons, 512 U. S., at 178 (O'Connor, J., concurring in judgment) ("[T]hat the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a lifesentenced defendant will be released from prison"). More critically, three jurors said that "if the [jury] knew that [Ramdass] would have never gotten out of prison, they would have given him life rather than death." App. 95. Two of them stated "that would have been the result among all of [the jurors] beyond question, if they had had that information." Ibid. But "because they weren't told or given the answer . . . they all had a perception that he would be paroled." Ibid.[3] After we remanded for reconsideration in light of Simmons, the Virginia Supreme Court held that case did not apply because Ramdass was not "ineligible for parole when the jury was considering his sentence." Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d 360, 361 (1994). The applicable Virginia statute requires three strikes for a defendant to be parole ineligible. "At the time that the jury was considering Ramdass's penalty on January 30, 1993," the court held, Ramdass "was not ineligible for parole" because he had only two strikes against him—the Pizza Hut robbery and the instant capital murder. Ibid. Ramdass' robbery of the Domino's Pizza did not count as his third strike, even though the jury in that case had already found him guilty. Technically, under state law, that did not count as a "conviction," because Virginia's definition of "conviction" is not just a guilty verdict. Rather, a "conviction" also requires a piece of paper signed by the judge entering the verdict into *185 the record. Id., at 520-521, 450 S.E.2d, at 361. The trial judge signed the entry of the judgment in the Domino's Pizza case 19 days after the end of the sentencing phase in Ramdass' capital murder proceeding. Ante, at 160. Therefore, the Virginia Supreme Court held that at the time "when the jury was considering [petitioner's] sentence" in the capital murder case, Ramdass was "not ineligible for parole" under state law, and thus Simmons was inapplicable. II The plurality begins by stating what it thinks is the rule established in Simmons: "The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state law." Ante, at 166. The plurality also adds a proviso: The defendant must be parole ineligible at the time of sentencing.[4] Given that understanding, the plurality says "[m]aterial differences exist between this case and Simmons. " Ante, at 167. But the differences to which the plurality points do not distinguish this case from Simmons. The first asserted distinction is that, as the Virginia Supreme Court stated, Ramdass was not parole ineligible under state law at the time of sentencing. Ramdass might *186 have become parole ineligible at some later date, but at the exact moment the jury was deliberating that was not yet so. The trouble is, that is not a fact that distinguishes Ramdass' case from Simmons'. In Simmons, the relevant parole statute was S. C. Code Ann. § 24-21-640 (Supp. 1993). See Simmons, 512 U. S., at 176 (O'Connor, J., concurring in judgment) (citing South Carolina parole law); see also id., at 156 (plurality opinion) (same).[5] Under that statute, it was the South Carolina Board of Probation, Parole, and Pardon Services that determined a defendant's parole eligibility—and that determination would come after the sentencing phase. Then-current South Carolina case law unambiguously stated that the eligibility determination would not be made at trial, but by the parole board.[6] Moreover, the statute required the parole board to find that the defendant's prior convictions were not committed "pursuant to one continuous course of conduct," and it was by no means certain that the board would ultimately reach that conclusion. In fact, in Simmons the State of South Carolina steadfastly maintained that Simmons was not truly parole ineligible at the time of his sentencing *187 phase because the parole board's determination had not yet been made.[7] Therefore, the fact that parole ineligibility under state law had not been determined at the time of sentencing is simply not a fact that distinguishes Simmons from Ramdass' case.[8] *188 Perhaps recognizing that problem, the plurality shifts ground. It is not, the plurality says, "only" whether parole ineligibility under state law has been determined "at the time of sentencing," but whether there is "no possibility" of parole eligibility at that time. Ante, at 169. In other words, the plurality says that Simmons applies when there is "conclusive proof" at the time of sentencing that the defendant will (in the future) "inevitabl[y]" be found parole ineligible. Ante, at 170, 173-174. In Ramdass' case, the plurality continues, he would not inevitably be parole ineligible, because, under Virginia law, his Domino's Pizza robbery verdict could have been set aside under Virginia Supreme Court Rule 3A:15(b) (1999). That Rule permits a trial court to set aside a guilty verdict up to 21 days after final judgment has been entered. Ante, at 174-175.[9] But again, this is not a fact that distinguishes Ramdass' case from Simmons'. Like Virginia, South Carolina permitted (and still permits) the court to entertain post-trial motions to set aside a verdict and such a motion could have *189 been filed in Simmons' case.[10] If the availability of such a post-trial procedure makes Ramdass' parole ineligibility less than inevitable, the same must also have been true for Simmons.[11] Accordingly, the mere availability of such a procedure is not a fact that distinguishes the two cases. In the end, though, the plurality does not really rest upon inevitability at all, nor upon the alleged lack of inevitability represented by the post-trial motion procedure. Instead, the plurality relies upon the fact that at the time of Ramdass' sentencing phase, although the jury had rendered a guilty verdict in the Domino's Pizza robbery case, the trial judge had not yet entered judgment on the verdict. Ante, at 160, 167, 173-174, 176. That entry of judgment would come 19 days later. Ante, at 160. The distinction is important, the plurality says, because "[a] judgment, not a verdict, is the usual measure for finality in the trial court," ante, at 176, whereas a verdict without a judgment is "uncertain," ibid. The plurality is, of course, correct that the missing entry of judgment is a circumstance that was not present in Simmons. *190 But the plurality's entirely unsupported assertion that an entry of judgment is more "certain" than a verdict is just flat wrong. The sole basis for the plurality's conclusion that the Domino's Pizza verdict is uncertain is the possibility that it could be set aside under Rule 3A:15(b). But under that Rule, a guilty verdict may be set aside even after judgment has been entered. See n. 9, supra. The plurality has cited not a single case suggesting that the standard for setting aside a verdict under Rule 3A:15(b) varies depending on whether or not judgment has been entered. Accordingly, a verdict that is susceptible to being set aside under Rule 3A:15(b) is no more or less certain simply because judgment has been entered on that verdict; whatever the degree of uncertainty is, it is identical in both cases. In short, whether judgment has been entered on the verdict has absolutely no bearing on the verdict's "uncertainty." The plurality cites 11 Virginia cases to support its argument that Rule 3A:15(b) puts a verdict on shaky ground. Ante, at 174-175. The authorities are less than overwhelming. Only 2 of those 11 cases actually mention Rule 3A:15(b),[12] and one of those does so in dicta in a footnote in the unpublished decision of an intermediate state court.[13] Four others make passing reference to some sort of posttrial motion that was denied, but do so only in the context of reciting the procedural history of the case under review.[14]*191 Another case also makes passing reference to the denial of a post-trial motion, but it is clear from the fact that the motion was predicated on "new evidence" (which is not a basis for a Rule 3A:15(b) motion, see n. 9, supra ) and was made four months after the verdict that the motion was almost certainly not based on Rule 3A:15(b).[15] Ultimately, the plurality points to only three cases to demonstrate that "a jury verdict [is] uncertain and unreliable until judgment is entered." Ante, at 175 (citing Dowell v. Commonwealth, 12 Va. App. 1145, 1149, 408 S.E.2d 263, 265 (1991) (mentioning Rule 3A:15(b)); Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922); Blair v. Commonwealth, 66 Va. 850 (1874)). What these cases hold, however, is (1) that a verdict without an entry of judgment may not be used for purposes of impeaching a witness' credibility; (2) the same may not be used for purposes of a statute permitting the removal from public office of any person "convicted of an act . . . involving moral turpitude"; but (3) the Governor can pardon a prisoner after a verdict and before entry of judgment. Not one of them actually involves a Rule 3A:15(b) motion, nor remotely says that a verdict itself is "unreliable."[16] The *192 plurality scrounges to find case law support, but the result barely registers on the radar screen. Furthermore, the plurality thinks that there is "no authority" for the proposition that entry of judgment is generally considered to be a "ministerial" matter. Ante, at 174. In a related context, however, the Virginia Supreme Court has observed: "The rendition of a judgment is to be distinguished from its entry in the records. The rendition of a judgment is the judicial act of the court, whereas the entry of a judgment by the clerk on the records of the court is a ministerial, and not a judicial, act. . . . The entry or recordation of such an instrument in an order book is the ministerial act of the clerk and does not constitute an integral part of the judgment." Rollins v. Bazile, 205 Va. 613, 617, 139 S.E.2d 114, 117 (1964) (citations and internal quotation marks omitted). In any event, there is a more critical point to be made about the plurality's entry-of-judgment distinction. In relying on that distinction, the plurality is necessarily abandoning the very understanding of Simmons that it purports to be following. As explained above, to the extent that the availability of Rule 3A:15(b) motions undermines the inevitability of a defendant's prior verdicts (and therefore his parole ineligibility) under state law, it does so whether or not judgment has been entered on the verdict. So why is it that Simmons does not apply when there is no entry of judgment? The answer simply cannot be that, under state law, and at the time of sentencing, the defendant will not inevitably be *193 found parole ineligible: the inevitability of the verdict is undermined equally with or without the judgment; and the defendant is eligible for parole under state law if the verdict is set aside, regardless of whether it is set aside before or after judgment is entered. In fact, though, the plurality really makes no attempt to explain the entry-of-judgment distinction in terms of either the at-the-time-of-sentencingunder-state-law rule, or in terms of the inevitable-understate-law rule. Rather, the significance of the entry of judgment rests upon the assertion that a judgment is more certain than a jury verdict. The entry-of-judgment line, then, is really about relative degrees of certainty regarding parole ineligibility.[17] If the question is not one in which state law controls (by looking to the defendant's conclusively determined status either at the time of sentencing or inevitably thereafter), the question of Simmons ` applicability must be an issue of federal due process law. That is a proposition with which I agree entirely; indeed, Simmons itself makes that perfectly clear, as I discuss below. Before examining what Simmons ` *194 due process requirements entail, however, it is important to understand the rationale behind Simmons: the need for capital sentencing juries to have accurate information about the defendant in the particular area of parole eligibility. III We stated in Gregg v. Georgia, 428 U.S. 153 (1976): "If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision." Id., at 190 (joint opinion of Stewart, Powell, and Stevens, JJ.). This imperative is all the more critical when the jury must make a determination as to future dangerousness. "[A]ny sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what sentence to impose. . . . What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 274-276 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). When it comes to issues such as future dangerousness and the possibility of parole, it is therefore vitally important that "the jury [have] accurate information of which both the defendant and his counsel are aware," including "an accurate statement of a potential sentencing alternative." California v. Ramos, 463 U.S. 992, 1004, 1009 (1983). This is not to say, of course, that the Constitution compels the States to tell the jury every single piece of information that may be relevant to its deliberations. See, e. g., id., at *195 1010-1012. Indeed, in California v. Ramos, we held it ordinarily proper to "defe[r] to the State's choice of substantive factors relevant to the penalty determination." Id., at 1001. Notwithstanding the broad discretion recognized in Ramos, the latitude to which the States are entitled is not unbounded; at times, it must give way to the demands of due process. One such due process requirement is that a defendant must have an opportunity to rebut the State's case against him. Simmons, 512 U. S., at 175 (O'Connor, J., concurring in judgment). And "[w]hen the State seeks to show the defendant's future dangerousness, . . . the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State's case." Id., at 177 (O'Connor, J., concurring in judgment). Accordingly, "despite our general deference to state decisions regarding what the jury should be told about sentencing, . . . due process requires that the defendant be allowed [to bring his parole ineligibility to the jury's attention] in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future." Ibid. The rationale for the Simmons exception to the general rule of Ramos is quite apparent. In Ramos, the defendant claimed that if the State were permitted to argue that the Governor could commute a sentence of life without parole, then due process entitled him to tell the jury that the Governor could commute a death sentence as well. We rejected that argument, however, holding that the information the defendant sought to introduce "would not `balance' the impact" of telling the jury that the Governor could commute a sentence of life without parole. 463 U.S., at 1011. Nor would it make the jury "any less inclined to vote for the death penalty upon learning" that information. Ibid. Nor, finally, were we persuaded that it would "impermissibly impe[l] the *196 jury toward voting for the death sentence" if the jury were told that a life without parole sentence could be commuted, but were not told that a death penalty could be commuted as well. Id., at 1012. Each of these factors, however, points in precisely the opposite direction when it comes to information about a defendant's parole ineligibility. If the State argues that the defendant will be a future danger to society, it quite plainly rebuts that argument to point out that the defendant—because of his parole ineligibility—will never be a part of society again. Simmons, 512 U. S., at 177 (O'Connor, J., concurring in judgment) ("[T]he fact that he will never be released from prison will often . . . rebut the State's case"). And unlike Ramos, if the jury is informed of a defendant's parole ineligibility, it is "less inclined to vote for the death penalty upon learning" that fact. Conversely, permitting the State to argue the defendant's future dangerousness, while simultaneously precluding the defendant from arguing his parole ineligibility, does tend to "impe[l] the jury toward voting for the death sentence." Despite the plurality's unsupported remark that "[e]vidence of potential parole ineligibility is of uncertain materiality," ante, at 170, all of the available data demonstrate to the contrary. How long a defendant will remain in jail is a critical factor for juries. One study, for example, indicates that 79% of Virginia residents consider the number of years that a defendant might actually serve before being paroled to be an "`important consideration when choosing between life imprisonment and the death penalty.' "[18] A similar study reveals that 76.5% of potential jurors think it is "extremely important" or "very important" to know that information when deciding between life imprisonment and the death penalty.[19]*197 Likewise, two-thirds of the respondents in another survey stated that they would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible.[20] General public support for the death penalty also plummets when the survey subjects are given the alternative of life without parole.[21] Indeed, parole ineligibility information is so important that 62.3% of potential Virginia jurors would actually disregard a judge's instructions not to consider parole eligibility when determining the defendant's sentence.[22] At the same time, the recent development of parole ineligibility statutes results in confusion and misperception, such that "common sense tells us that many jurors might not know whether a life sentence carries with it the possibility *198 of parole." Simmons, 512 U. S., at 177-178 (O'Connor, J., concurring in judgment). The statistical data bear this out. One study of potential Virginia jurors asked: "`If a person is sentenced to life imprisonment for intentional murder during an armed robbery, how many years on the average do you think that the person would actually serve before being released on parole?' " The most frequent response was 10 years.[23] Another potential-juror survey put the average response at just over eight years.[24] And more than 70% of potential jurors think that a person sentenced to life in prison for murder can be released at some point in the future.[25] Given this data, it is not surprising that one study concluded: "[J]urors assessing dangerousness attach great weight to the defendant's expected sentence if a death sentence is not imposed. Most importantly, jurors who believe the alternative to death is a relatively short time in prison tend to sentence to death. Jurors who believe the alternative treatment is longer tend to sentence to life."[26] Consequently, every reason why the Governor's commutation power at issue in Ramos was not required to be put before the jury leads to precisely the opposite conclusion when it comes to the issue of parole ineligibility. That is exactly why Simmons is an exception to the normally operative rule of deference established in Ramos.[27] The plurality—focusing exclusively on one of the many sources cited—criticizes at length (ante, at 172-173) these "so-called scientific conclusions" that merely confirm what *199 every sentencing judge surely knows—that how soon the defendant may actually be released from prison is highly relevant to the sentencing decision. The plurality's criticism yet again underscores the formalistic character of its analysis of the life-or-death issue presented by this case. In exercising the judicial function, there are times when judgment is far more important than technical symmetry.[28] IV The Virginia Supreme Court held that whether Simmons applies is a question whose answer is entirely controlled by the operation of state law. See supra, at 184-185. This understanding was adopted by the plurality as well, at least as it originally stated the holding of Simmons. See supra, at 185. But as explained above, the Virginia court's view, as well as the plurality's original stance, simply cannot be reconciled with Simmons itself. That might explain why the plurality ultimately abandons that view, instead relying *200 on an assessment of how probable it is that the defendant will be found parole ineligible—or, as the plurality might put it, what is "more certain" under state law. The plurality is correct to reject the Virginia Supreme Court's holding that state law entirely controls the applicability of Simmons. Simmons announced a rule of due process, not state law. 512 U.S., at 156 (plurality opinion); id., at 177 (O'Connor, J., concurring in judgment). This is not to say that the federal due process right in Simmons does not make reference to state law, for surely it does; the very reason why Simmons is an exception to Ramos is because of the consequences of parole ineligibility under state law. But that is not the same thing as saying that the precise, technical operation of state law entirely controls its applicability. Simmons itself makes this perfectly clear. In that case South Carolina argued that "because future exigencies such as legislative reform, commutation, clemency, and escape might allow [Simmons] to be released into society, [Simmons] was not entitled to inform the jury that he is parole ineligible." 512 U.S., at 166, and n. 6 (plurality opinion). Indeed, as noted earlier, it argued that Simmons was not, technically, parole ineligible at the time of sentencing because the state parole board had not yet made its determination. See supra, at 186-187. Yet the plurality opinion rejected outright the argument that "hypothetical future developments" control the issue, finding that South Carolina's argument about state law, while "technically . . . true," and "legally accurate," had "little force." Simmons, 512 U. S., at 166, and n. 6.[29] In other words, the due process standard of Simmons was not controlled *201 entirely by the technical minutiae of state law, even though it looked at state law for determining when the right to rebut the State's argument was triggered. It makes perfect sense for Simmons ` due process right to make reference to, yet not be wholly controlled by, state law. On the one hand, Simmons is a limited exception to Ramos, and as such it is confined to where the defendant will be parole ineligible—hence the reference to state law. On the other hand, Simmons is a constitutional requirement imposed on the States. If its applicability turned entirely on a defendant's technical status under state law at the time of sentencing, the constitutional requirement would be easily evaded by the artful crafting of a state statute. For example, if Virginia can define "conviction" to require an entry of judgment, it could just as easily define "conviction" to require that all final appeals be exhausted, or that all state and federal habeas options be foreclosed. And by delaying when the defendant's convictions count as strikes for parole ineligibility purposes until some point in time well after the capital murder sentencing phase, the State could convert the Simmons requirement into an opt-in constitutional rule.[30] Simmons ` applicability is therefore a question of federal law, and that case makes clear that the federal standard essentially disregards future hypothetical possibilities even if they might make the defendant parole eligible at some *202 point.[31] The question in this case, then, boils down to whether the plurality's line between entry of judgment and a verdict is a demarcation of Simmons ` applicability that is (1) consistent with Simmons; (2) a realistic and accurate assessment of the probabilities; and (3) a workable, clear rule. I believe the plurality fails on each score. It is important to emphasize the precise basis for the uncertainty the plurality perceives. The plurality limits the relevant uncertainty to things known before the time of sentencing. Events developing the day after sentencing, which might lend uncertainty to a defendant's eventual parole ineligibility do not make Simmons inapplicable, the plurality says. Ante, at 176. What I understand the plurality to be concerned about is whether the facts, as known at or prior to sentencing, cast any doubt on whether, after sentencing, the defendant will become parole ineligible. Even if nothing definitive has happened yet by the time of sentencing, the facts as known at that time might well give rise to uncertainty as to the defendant's parole ineligibility. The question, then, is what were the facts as known at the time of Ramdass' sentencing that might cast doubt on whether he would be found parole ineligible after sentencing. The facts to which the plurality points are, first, that judgment had not yet been entered on the verdict, and second, that the verdict could have been set aside if Ramdass had *203 filed a motion to set aside the verdict under Rule 3A:15(b) and the trial court had found that motion meritorious. But no motion to set aside the verdict had been filed or was pending; no legal basis for granting such a motion had (or has) ever been identified; and there was not the slightest indication from the Domino's Pizza robbery trial court that such a motion would have been found meritorious if it had been filed. In short, the plurality finds constitutionally significant uncertainty in the hypothetical possibility that a motion, if it had been filed, might have identified a trial error and the court possibly could have found the claim meritorious. The mere availability of a procedure for setting aside a verdict that is necessary for the defendant's parole ineligibility is enough, the plurality says, to make Simmons inapplicable. Frankly, I do not see how Simmons can be found inapplicable on the basis of such a "hypothetical future developmen[t]." 512 U.S., at 166 (plurality opinion). The plurality offers no evidence whatsoever that this possibility—an "if only" wrapped in a "might have" inside of a "possibly so"— is at all more likely to occur than the "hypothetical future developments" that Simmons itself refused to countenance. Why is that possibility of setting aside the verdict any more likely than the fanciful scenarios dismissed in Simmons? Why is the certainty diminished merely because the trial judge has not yet entered judgment, when that fact has no bearing on whether a Rule 3A:15(b) motion will be granted? The plurality never tells us, for it simply declares, without support, elaboration, or explanation, that a verdict is more uncertain than a judgment is. See supra, at 192-193, and n. 17. The only reason it suggests for why the verdict here was uncertain is rather remarkable—that Ramdass himself said so. That is, the plurality relies upon the fact that a convicted murderer with minimal education and a history of drug experimentation including PCP and cocaine, App. 49, said "I don't know" when asked if he could ever be released *204 from prison. Ante, at 177. This evidence is thinner than gossamer.[32] What's more, the plurality's assessment of certainties is internally inconsistent. As explained earlier, the standard for setting aside a verdict post-trial is the same regardless of whether judgment has been entered. Accordingly, if the verdict was uncertain in the Domino's Pizza case, that was also true for the Pizza Hut conviction. At the time of the sentencing hearing in the capital murder case, the deadline for filing a motion under the Rule had not expired for either the Domino's Pizza verdict or the Pizza Hut conviction. (The time for filing a motion for the Pizza Hut conviction expired on February 12, 21 days after judgment had been entered on that verdict. This was 13 days after the sentencing phase in the capital murder case ended.) Because there was a possibility that the Pizza Hut conviction could have been set aside before judgment was entered on the Domino's Pizza verdict (and therefore before Ramdass technically became parole ineligible), the certainty of the verdict was just as much in doubt for that conviction. The plurality, however, finds the Domino's Pizza verdict uncertain yet casts no doubt on the Pizza Hut conviction. How can this possibly be consistent? The plurality never says. Finally, the plurality's approach is entirely boundless. If the kind of "hypothetical future developmen[t]" at issue here is sufficient to make Simmons inapplicable, would it *205 be sufficient if, rather than having the possibility of a recent conviction being set aside by post-trial motion, an old prior conviction could be set aside on appeal before judgment had been entered on the Domino's Pizza verdict? Or under a State's postconviction habeas procedure? More to the point, if the mere availability of a post-trial procedure to set aside the verdict is enough, is the same true as well for the mere availability of an appeal or state habeas review, so long as the time had not expired for either? Old convictions necessary for a defendant's parole ineligibility can be set aside under these procedures as well. And under each procedure those prior convictions could potentially be set aside at the crucial moment.[33] It is easy, in this case, to be distracted by the lack of an entry of judgment and the recentness of Ramdass' prior convictions. As the above examples demonstrate, however, these facts tend to detract from, rather than elucidate, the relevant issue. If Simmons is inapplicable because at least one of the defendant's prior convictions could be set aside before sentencing (or before the third strike becomes final, or before whatever time the plurality might think is the crucial moment), then it should not matter, under that reasoning, whether it is set aside by post-trial motion, on appeal, or through state (or federal) postconviction relief. What's more, the plurality's reasoning would hold true so long as these procedures are simply available. Accordingly, it would not matter whether a defendant's prior strikes were a day old, a year old, or 100 years old. Nor would it matter that judgment had been entered on those prior convictions. So long as such procedures for setting aside old convictions *206 exist and remain technically available prior to a defendant's capital murder sentencing phase, the defendant's eventual parole ineligibility is just as uncertain at the crucial moment. The plurality, however, never addresses any of this, but surely its holding today is an invitation to such possibilities. Indeed, if these possibilities make Simmons inapplicable, does this not invite the very same circumvention of Simmons that would result if the rule turned entirely on state law (see supra, at 201), by allowing a State to render all prior convictions uncertain simply by holding open some theoretical possibility for postconviction relief at all times? Given that appeals and various forms of postconviction relief undermine the certainty of a verdict or a "conviction" every bit as much as does a procedure like Rule 3A:15(b)— indeed, probably more so—the plurality's reasoning either draws an arbitrary line between these types of procedures, or it accepts that all of these possibilities make Simmons inapplicable, in which case that due process right is eviscerated entirely.[34] It is abundantly clear that the proclaimed "workable" rule the plurality claims to be following is an illusion. Ante, at 166. No such arbitrary line-drawing is at all necessary to decide this case. It is entirely sufficient simply to hold that Virginia has offered not one reason for doubting that judgment would be entered on the Domino's Pizza robbery verdict or for doubting Ramdass' eventual parole ineligibility. Certainly it has offered no reason for thinking that the possibility *207 of setting aside the Domino's Pizza robbery verdict is at all more likely than the hypothetical future developments rejected in Simmons. This case thus falls squarely within Simmons. Though it is unnecessary to decide it here, a guilty verdict is the proper line. A guilty verdict against the defendant is a natural breaking point in the uncertainties inherent in the trial process. Before that time, the burden is on the State to prove the accused's guilt beyond a reasonable doubt. A guilty verdict, however, means that the defendant's presumption of innocence—with all of its attendant trial safeguards—has been overcome. The verdict resolves the central question of the general issue of guilt. It marks the most significant point of the adversary proceeding, and reflects a fundamental shift in the probabilities regarding the defendant's fate. For that reason, it is the proper point at which a line separating the hypothetical from the probable should be drawn. Moreover, because the State itself can use the defendant's prior crimes to argue future dangerousness after a jury has rendered a verdict—as Virginia did here, see supra, at 182-183, and n. 2—that is also the point at which the defendant's Simmons right should attach. V In Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion of O'Connor, J.), we stated the standard for granting habeas relief under 28 U.S. C. § 2254(d)(1): "A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." As I have explained, the Virginia Supreme Court applied Simmons as if (a) its applicability was controlled entirely by state law and (b) the defendant's parole ineligibility is determined at the exact moment when the sentencing phase occurs. See supra, at 184— 185. But state law does not control Simmons ` applicability, nor does the due process right turn on whether the defendant *208 has already been found parole ineligible at the exact moment of sentencing. Simmons itself makes this entirely clear. Both aspects of the Virginia Supreme Court's holding, then, applied a "rule that contradicts the governing law set forth in" Simmons. We also held in Williams that "[a] state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." 529 U.S., at 406. The Virginia Supreme Court's decision was also contrary to Simmons in this respect. Because the "hypothetical future developments" rejected in Simmons are materially indistinguishable from the future possibility here, the Virginia court's decision is contrary to Simmons. Even assuming the correct rule had been applied, the Virginia Supreme Court's decision would be an "unreasonable application" of Simmons. That court held that the Pizza Hut conviction would count as a strike, but not the Domino's Pizza robbery verdict. The only distinction is the lack of an entry of judgment, and the only reason that matters is because the verdict may be set aside by a post-trial motion. But that possibility remains identical for both crimes. To disregard one of those hypothetical possibilities but not the other based on a state-law distinction that has absolutely no relevance to the probability that the verdict will be set aside is an unreasonable application of Simmons.[35] *209 VI Nothing in the above arguments should distract us from the fact that this is a simple case. The question turns on whether the hypothetical possibility that the trial judge might fail to sign a piece of paper entering judgment on a guilty verdict should mean that the defendant is precluded from arguing his parole ineligibility to the jury. We should also not be distracted by the plurality's red herring—the possibility of setting aside the verdict by a post-trial motion. Not only is that possibility indistinguishable from the nonexhaustive list of hypothetical future possibilities we dismissed in Simmons, but it also fails to distinguish this case from the many other possibilities that are part of the state criminal justice system, and fails to distinguish Ramdass' convictions from each other. The plurality's convoluted understanding of Simmons and its diverse implications necessitate a fair amount of disentangling of its argument. But, once again, this should not divert us from the plain reality of this case. Juries want to know about parole ineligibility. We know how important *210 it is to their life-and-death decisionmaking. We know how misinformed they are likely to be if we do not give them this information. We know Simmons has worked,[36] and we know the States have wholeheartedly embraced it.[37] Moreover, we know this jury thought the information was critical; we know this jury misunderstood what a "life" sentence meant; we know this jury would have recommended life instead of death if it had known that Ramdass was parole ineligible; and we know this jury did not get a clear answer to its question. We also know that Virginia entrusts to the jury the solemn duty of recommending life or death for the defendant. Why does the Court insist that the Constitution permits the wool to be pulled over their eyes? I respectfully dissent.

There is an acute unfairness in permitting a State to rely on a recent conviction to establish a defendant's future dangerousness while simultaneously permitting the State to deny that there was such a conviction when the defendant attempts to argue that he is parole ineligible and therefore not a future danger. Even the most miserly reading of the opinions in supports the conclusion that this petitioner was denied "one of the hallmarks of due process in our adversary system," namely, the defendant's right "to meet the State's case against him." I In we held that "[w]hen the State seeks to show the defendant's future dangerousness the defendant should be allowed to bring his parole ineligibility to the jury's attention—by way of argument by defense counsel or an instruction from the court—as a means of responding to the State's showing of future dangerousness." The present case falls squarely within our holding. There is no question that the Commonwealth argued Ramdass' future dangerousness. Ante, at 161. In doing so, it focused almost entirely on Ramdass' extensive criminal history, emphasizing that his most recent crime spree was committed after his mandatory release on parole.[1] Indeed, *183 the prosecution relied upon the Domino's Pizza robbery—the very crime Virginia has precluded Ramdass from relying upon to establish his parole ineligibility.[2] There is also no question that Ramdass was denied the opportunity to inform the jury of his parole ineligibility. During the sentencing deliberations, the jury asked the following question: "[I]f the Defendant is given life, is there a possibility of parole at some time before his natural death?" App. 88. Rather than giving any kind of straightforward answer, and rather than permitting counsel to explain petitioner's parole ineligibility, the court instructed: "[Y]ou should impose such punishment as you feel is just under the evidence You are not to concern yourselves with what may happen afterwards." Finally, it is undisputed that the absence of a clear instruction made a difference. The question itself demonstrates that parole ineligibility was important to the jury, and that the jury was confused about whether a "life" sentence truly means life—or whether it means life subject to *184 the possibility of parole. See ("[T]hat the jury in this case felt compelled to ask whether parole was available shows that the jurors did not know whether or not a lifesentenced defendant will be released from prison"). More critically, three jurors said that "if the [jury] knew that [Ramdass] would have never gotten out of prison, they would have given him life rather than death." App. 5. Two of them stated "that would have been the result among all of [the jurors] beyond question, if they had had that information." But "because they weren't told or given the answer they all had a perception that he would be paroled." [3] After we remanded for reconsideration in light of the Virginia Supreme Court held that case did not apply because Ramdass was not "ineligible for parole when the jury was considering his sentence." The applicable Virginia statute requires three strikes for a defendant to be parole ineligible. "At the time that the jury was considering Ramdass's penalty on January 30, 13," the court held, Ramdass "was not ineligible for parole" because he had only two strikes against him—the Pizza Hut robbery and the instant capital murder. Ramdass' robbery of the Domino's Pizza did not count as his third strike, even though the jury in that case had already found him guilty. Technically, under state law, that did not count as a "conviction," because Virginia's definition of "conviction" is not just a guilty verdict. Rather, a "conviction" also requires a piece of paper signed by the judge entering the verdict into *185 the record. at -521, 450 S.E.2d, at The trial judge signed the entry of the judgment in the Domino's Pizza case 1 days after the end of the sentencing phase in Ramdass' capital murder proceeding. Ante, at 160. Therefore, the Virginia Supreme Court held that at the time "when the jury was considering [petitioner's] sentence" in the capital murder case, Ramdass was "not ineligible for parole" under state law, and thus was inapplicable. II The plurality begins by stating what it thinks is the rule established in : "The parole-ineligibility instruction is required only when, assuming the jury fixes the sentence at life, the defendant is ineligible for parole under state " Ante, at 166. The plurality also adds a proviso: The defendant must be parole ineligible at the time of sentencing.[4] Given that understanding, the plurality says "[m]aterial differences exist between this case and " Ante, at 167. But the differences to which the plurality points do not distinguish this case from The first asserted distinction is that, as the Virginia Supreme Court stated, Ramdass was not parole ineligible under state law at the time of sentencing. Ramdass might *186 have become parole ineligible at some later date, but at the exact moment the jury was deliberating that was not yet so. The trouble is, that is not a fact that distinguishes Ramdass' case from '. In the relevant parole statute was S. C. Code Ann. 24-21-640 (Supp. 13). See (citing South Carolina parole law); see also (same).[5] Under that statute, it was the South Carolina Board of Probation, Parole, and Pardon Services that determined a defendant's parole eligibility—and that determination would come after the sentencing phase. Then-current South Carolina case law unambiguously stated that the eligibility determination would not be made at trial, but by the parole board.[6] Moreover, the statute required the parole board to find that the defendant's prior convictions were not committed "pursuant to one continuous course of conduct," and it was by no means certain that the board would ultimately reach that conclusion. In fact, in the State of South Carolina steadfastly maintained that was not truly parole ineligible at the time of his sentencing *187 phase because the parole board's determination had not yet been made.[7] Therefore, the fact that parole ineligibility under state law had not been determined at the time of sentencing is simply not a fact that distinguishes from Ramdass' case.[8] *188 Perhaps recognizing that problem, the plurality shifts ground. It is not, the plurality says, "only" whether parole ineligibility under state law has been determined "at the time of sentencing," but whether there is "no possibility" of parole eligibility at that time. Ante, at 16. In other words, the plurality says that applies when there is "conclusive proof" at the time of sentencing that the defendant will (in the future) "inevitabl[y]" be found parole ineligible. Ante, at 170, 173-174. In Ramdass' case, the plurality continues, he would not inevitably be parole ineligible, because, under Virginia law, his Domino's Pizza robbery verdict could have been set aside under Virginia Supreme Court Rule 3A:15(b) (1). That Rule permits a trial court to set aside a guilty verdict up to 21 days after final judgment has been entered. Ante, at 174-175.[] But again, this is not a fact that distinguishes Ramdass' case from '. Like Virginia, South Carolina permitted (and still permits) the court to entertain post-trial motions to set aside a verdict and such a motion could have *18 been filed in ' case.[10] If the availability of such a post-trial procedure makes Ramdass' parole ineligibility less than inevitable, the same must also have been true for[11] Accordingly, the mere availability of such a procedure is not a fact that distinguishes the two cases. In the end, though, the plurality does not really rest upon inevitability at all, nor upon the alleged lack of inevitability represented by the post-trial motion procedure. Instead, the plurality relies upon the fact that at the time of Ramdass' sentencing phase, although the jury had rendered a guilty verdict in the Domino's Pizza robbery case, the trial judge had not yet entered judgment on the verdict. Ante, at 160, 167, 173-174, 176. That entry of judgment would come 1 days later. Ante, at 160. The distinction is important, the plurality says, because "[a] judgment, not a verdict, is the usual measure for finality in the trial court," ante, at 176, whereas a verdict without a judgment is "uncertain," The plurality is, of course, correct that the missing entry of judgment is a circumstance that was not present in *10 But the plurality's entirely unsupported assertion that an entry of judgment is more "certain" than a verdict is just flat wrong. The sole basis for the plurality's conclusion that the Domino's Pizza verdict is uncertain is the possibility that it could be set aside under Rule 3A:15(b). But under that Rule, a guilty verdict may be set aside even after judgment has been entered. See n. The plurality has cited not a single case suggesting that the standard for setting aside a verdict under Rule 3A:15(b) varies depending on whether or not judgment has been entered. Accordingly, a verdict that is susceptible to being set aside under Rule 3A:15(b) is no more or less certain simply because judgment has been entered on that verdict; whatever the degree of uncertainty is, it is identical in both cases. In short, whether judgment has been entered on the verdict has absolutely no bearing on the verdict's "uncertainty." The plurality cites 11 Virginia cases to support its argument that Rule 3A:15(b) puts a verdict on shaky ground. Ante, at 174-175. The authorities are less than overwhelming. Only 2 of those 11 cases actually mention Rule 3A:15(b),[12] and one of those does so in dicta in a footnote in the unpublished decision of an intermediate state court.[13] Four others make passing reference to some sort of posttrial motion that was denied, but do so only in the context of reciting the procedural history of the case under review.[14]*11 Another case also makes passing reference to the denial of a post-trial motion, but it is clear from the fact that the motion was predicated on "new evidence" (which is not a basis for a Rule 3A:15(b) motion, see n. ) and was made four months after the verdict that the motion was almost certainly not based on Rule 3A:15(b).[15] Ultimately, the plurality points to only three cases to demonstrate that "a jury verdict [is] uncertain and unreliable until judgment is entered." Ante, (citing 114, (11) ; 134 Va. 58, (122); ). What these cases hold, however, is (1) that a verdict without an entry of judgment may not be used for purposes of impeaching a witness' credibility; (2) the same may not be used for purposes of a statute permitting the removal from public office of any person "convicted of an act involving moral turpitude"; but (3) the Governor can pardon a prisoner after a verdict and before entry of judgment. Not one of them actually involves a Rule 3A:15(b) motion, nor remotely says that a verdict itself is "unreliable."[16] The *12 plurality scrounges to find case law support, but the result barely registers on the radar screen. Furthermore, the plurality thinks that there is "no authority" for the proposition that entry of judgment is generally considered to be a "ministerial" matter. Ante, at 174. In a related context, however, the Virginia Supreme Court has observed: "The rendition of a judgment is to be distinguished from its entry in the records. The rendition of a judgment is the judicial act of the court, whereas the entry of a judgment by the clerk on the records of the court is a ministerial, and not a judicial, act. The entry or recordation of such an instrument in an order book is the ministerial act of the clerk and does not constitute an integral part of the judgment." 13 S.E.2d 114, (164) In any event, there is a more critical point to be made about the plurality's entry-of-judgment distinction. In relying on that distinction, the plurality is necessarily abandoning the very understanding of that it purports to be following. As explained above, to the extent that the availability of Rule 3A:15(b) motions undermines the inevitability of a defendant's prior verdicts (and therefore his parole ineligibility) under state law, it does so whether or not judgment has been entered on the verdict. So why is it that does not apply when there is no entry of judgment? The answer simply cannot be that, under state law, and at the time of sentencing, the defendant will not inevitably be *13 found parole ineligible: the inevitability of the verdict is undermined equally with or without the judgment; and the defendant is eligible for parole under state law if the verdict is set aside, regardless of whether it is set aside before or after judgment is entered. In fact, though, the plurality really makes no attempt to explain the entry-of-judgment distinction in terms of either the at-the-time-of-sentencingunder-state-law rule, or in terms of the inevitable-understate-law rule. Rather, the significance of the entry of judgment rests upon the assertion that a judgment is more certain than a jury verdict. The entry-of-judgment line, then, is really about relative degrees of certainty regarding parole ineligibility.[17] If the question is not one in which state law controls (by looking to the defendant's conclusively determined status either at the time of sentencing or inevitably thereafter), the question of ` applicability must be an issue of federal due process That is a proposition with which I agree entirely; indeed, itself makes that perfectly clear, as I discuss below. Before examining what ` *14 due process requirements entail, however, it is important to understand the rationale behind : the need for capital sentencing juries to have accurate information about the defendant in the particular area of parole eligibility. III We stated in (176): "If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision." at 10 This imperative is all the more critical when the jury must make a determination as to future dangerousness. "[A]ny sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what sentence to impose. What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine." (176) When it comes to issues such as future dangerousness and the possibility of parole, it is therefore vitally important that "the jury [have] accurate information of which both the defendant and his counsel are aware," including "an accurate statement of a potential sentencing alternative." 463 U.S. 2, 1004, 100 (183). This is not to say, of course, that the Constitution compels the States to tell the jury every single piece of information that may be relevant to its deliberations. See, e. g., at *15 1010-1012. Indeed, in we held it ordinarily proper to "defe[r] to the State's choice of substantive factors relevant to the penalty determination." Notwithstanding the broad discretion recognized in Ramos, the latitude to which the States are entitled is not unbounded; at times, it must give way to the demands of due process. One such due process requirement is that a defendant must have an opportunity to rebut the State's case against him. 512 U. S., And "[w]hen the State seeks to show the defendant's future dangerousness, the fact that he will never be released from prison will often be the only way that a violent criminal can successfully rebut the State's case." Accordingly, "despite our general deference to state decisions regarding what the jury should be told about sentencing, due process requires that the defendant be allowed [to bring his parole ineligibility to the jury's attention] in cases in which the only available alternative sentence to death is life imprisonment without possibility of parole and the prosecution argues that the defendant will pose a threat to society in the future." The rationale for the exception to the general rule of Ramos is quite apparent. In Ramos, the defendant claimed that if the State were permitted to argue that the Governor could commute a sentence of life without parole, then due process entitled him to tell the jury that the Governor could commute a death sentence as well. We rejected that argument, however, holding that the information the defendant sought to introduce "would not `balance' the impact" of telling the jury that the Governor could commute a sentence of life without parole. Nor would it make the jury "any less inclined to vote for the death penalty upon learning" that information. Nor, finally, were we persuaded that it would "impermissibly impe[l] the *16 jury toward voting for the death sentence" if the jury were told that a life without parole sentence could be commuted, but were not told that a death penalty could be commuted as well. Each of these factors, however, points in precisely the opposite direction when it comes to information about a defendant's parole ineligibility. If the State argues that the defendant will be a future danger to society, it quite plainly rebuts that argument to point out that the defendant—because of his parole ineligibility—will never be a part of society again. 512 U. S., ("[T]he fact that he will never be released from prison will often rebut the State's case"). And unlike Ramos, if the jury is informed of a defendant's parole ineligibility, it is "less inclined to vote for the death penalty upon learning" that fact. Conversely, permitting the State to argue the defendant's future dangerousness, while simultaneously precluding the defendant from arguing his parole ineligibility, does tend to "impe[l] the jury toward voting for the death sentence." Despite the plurality's unsupported remark that "[e]vidence of potential parole ineligibility is of uncertain materiality," ante, at 170, all of the available data demonstrate to the contrary. How long a defendant will remain in jail is a critical factor for juries. One study, for example, indicates that 7% of Virginia residents consider the number of years that a defendant might actually serve before being paroled to be an "`important consideration when choosing between life imprisonment and the death penalty.' "[18] A similar study reveals that 76.5% of potential jurors think it is "extremely important" or "very important" to know that information when deciding between life imprisonment and the death penalty.[1]*17 Likewise, two-thirds of the respondents in another survey stated that they would be more likely to give a life sentence instead of death if they knew the defendant had to serve at least 25 years in prison before being parole eligible.[20] General public support for the death penalty also plummets when the survey subjects are given the alternative of life without parole.[21] Indeed, parole ineligibility information is so important that 62.3% of potential Virginia jurors would actually disregard a judge's instructions not to consider parole eligibility when determining the defendant's sentence.[22] At the same time, the recent development of parole ineligibility statutes results in confusion and misperception, such that "common sense tells us that many jurors might not know whether a life sentence carries with it the possibility *18 of parole." 512 U. S., -178 The statistical data bear this out. One study of potential Virginia jurors asked: "`If a person is sentenced to life imprisonment for intentional murder during an armed robbery, how many years on the average do you think that the person would actually serve before being released on parole?' " The most frequent response was 10 years.[23] Another potential-juror survey put the average response at just over eight years.[24] And more than 70% of potential jurors think that a person sentenced to life in prison for murder can be released at some point in the future.[25] Given this data, it is not surprising that one study concluded: "[J]urors assessing dangerousness attach great weight to the defendant's expected sentence if a death sentence is not imposed. Most importantly, jurors who believe the alternative to death is a relatively short time in prison tend to sentence to death. Jurors who believe the alternative treatment is longer tend to sentence to life."[26] Consequently, every reason why the Governor's commutation power at issue in Ramos was not required to be put before the jury leads to precisely the opposite conclusion when it comes to the issue of parole ineligibility. That is exactly why is an exception to the normally operative rule of deference established in Ramos.[27] The plurality—focusing exclusively on one of the many sources cited—criticizes at length (ante, at 172-173) these "so-called scientific conclusions" that merely confirm what *1 every sentencing judge surely knows—that how soon the defendant may actually be released from prison is highly relevant to the sentencing decision. The plurality's criticism yet again underscores the formalistic character of its analysis of the life-or-death issue presented by this case. In exercising the judicial function, there are times when judgment is far more important than technical symmetry.[28] IV The Virginia Supreme Court held that whether applies is a question whose answer is entirely controlled by the operation of state See This understanding was adopted by the plurality as well, at least as it originally stated the holding of See But as explained above, the Virginia court's view, as well as the plurality's original stance, simply cannot be reconciled with itself. That might explain why the plurality ultimately abandons that view, instead relying *200 on an assessment of how probable it is that the defendant will be found parole ineligible—or, as the plurality might put it, what is "more certain" under state The plurality is correct to reject the Virginia Supreme Court's holding that state law entirely controls the applicability of announced a rule of due process, not state 512 U.S., ; This is not to say that the federal due process right in does not make reference to state law, for surely it does; the very reason why is an exception to Ramos is because of the consequences of parole ineligibility under state But that is not the same thing as saying that the precise, technical operation of state law entirely controls its applicability. itself makes this perfectly clear. In that case South Carolina argued that "because future exigencies such as legislative reform, commutation, clemency, and escape might allow [] to be released into society, [] was not entitled to inform the jury that he is parole ineligible." and n. 6 Indeed, as noted earlier, it argued that was not, technically, parole ineligible at the time of sentencing because the state parole board had not yet made its determination. See Yet the plurality opinion rejected outright the argument that "hypothetical future developments" control the issue, finding that South Carolina's argument about state law, while "technically true," and "legally accurate," had "little force." and n. 6.[2] In other words, the due process standard of was not controlled *201 entirely by the technical minutiae of state law, even though it looked at state law for determining when the right to rebut the State's argument was triggered. It makes perfect sense for ` due process right to make reference to, yet not be wholly controlled by, state On the one hand, is a limited exception to Ramos, and as such it is confined to where the defendant will be parole ineligible—hence the reference to state On the other hand, is a constitutional requirement imposed on the States. If its applicability turned entirely on a defendant's technical status under state law at the time of sentencing, the constitutional requirement would be easily evaded by the artful crafting of a state statute. For example, if Virginia can define "conviction" to require an entry of judgment, it could just as easily define "conviction" to require that all final appeals be exhausted, or that all state and federal habeas options be foreclosed. And by delaying when the defendant's convictions count as strikes for parole ineligibility purposes until some point in time well after the capital murder sentencing phase, the State could convert the requirement into an opt-in constitutional rule.[30] ` applicability is therefore a question of federal law, and that case makes clear that the federal standard essentially disregards future hypothetical possibilities even if they might make the defendant parole eligible at some *202 point.[31] The question in this case, then, boils down to whether the plurality's line between entry of judgment and a verdict is a demarcation of ` applicability that is (1) consistent with ; (2) a realistic and accurate assessment of the probabilities; and (3) a workable, clear rule. I believe the plurality fails on each score. It is important to emphasize the precise basis for the uncertainty the plurality perceives. The plurality limits the relevant uncertainty to things known before the time of sentencing. Events developing the day after sentencing, which might lend uncertainty to a defendant's eventual parole ineligibility do not make inapplicable, the plurality says. Ante, at 176. What I understand the plurality to be concerned about is whether the facts, as known at or prior to sentencing, cast any doubt on whether, after sentencing, the defendant will become parole ineligible. Even if nothing definitive has happened yet by the time of sentencing, the facts as known at that time might well give rise to uncertainty as to the defendant's parole ineligibility. The question, then, is what were the facts as known at the time of Ramdass' sentencing that might cast doubt on whether he would be found parole ineligible after sentencing. The facts to which the plurality points are, first, that judgment had not yet been entered on the verdict, and second, that the verdict could have been set aside if Ramdass had *203 filed a motion to set aside the verdict under Rule 3A:15(b) and the trial court had found that motion meritorious. But no motion to set aside the verdict had been filed or was pending; no legal basis for granting such a motion had (or has) ever been identified; and there was not the slightest indication from the Domino's Pizza robbery trial court that such a motion would have been found meritorious if it had been filed. In short, the plurality finds constitutionally significant uncertainty in the hypothetical possibility that a motion, if it had been filed, might have identified a trial error and the court possibly could have found the claim meritorious. The mere availability of a procedure for setting aside a verdict that is necessary for the defendant's parole ineligibility is enough, the plurality says, to make inapplicable. Frankly, I do not see how can be found inapplicable on the basis of such a "hypothetical future developmen[t]." The plurality offers no evidence whatsoever that this possibility—an "if only" wrapped in a "might have" inside of a "possibly so"— is at all more likely to occur than the "hypothetical future developments" that itself refused to countenance. Why is that possibility of setting aside the verdict any more likely than the fanciful scenarios dismissed in ? Why is the certainty diminished merely because the trial judge has not yet entered judgment, when that fact has no bearing on whether a Rule 3A:15(b) motion will be granted? The plurality never tells us, for it simply declares, without support, elaboration, or explanation, that a verdict is more uncertain than a judgment is. See at 12-13, and n. 17. The only reason it suggests for why the verdict here was uncertain is rather remarkable—that Ramdass himself said so. That is, the plurality relies upon the fact that a convicted murderer with minimal education and a history of drug experimentation including PCP and cocaine, App. 4, said "I don't know" when asked if he could ever be released *204 from prison. Ante, This evidence is thinner than gossamer.[32] What's more, the plurality's assessment of certainties is internally inconsistent. As explained earlier, the standard for setting aside a verdict post-trial is the same regardless of whether judgment has been entered. Accordingly, if the verdict was uncertain in the Domino's Pizza case, that was also true for the Pizza Hut conviction. At the time of the sentencing hearing in the capital murder case, the deadline for filing a motion under the Rule had not expired for either the Domino's Pizza verdict or the Pizza Hut conviction. (The time for filing a motion for the Pizza Hut conviction expired on February 12, 21 days after judgment had been entered on that verdict. This was 13 days after the sentencing phase in the capital murder case ended.) Because there was a possibility that the Pizza Hut conviction could have been set aside before judgment was entered on the Domino's Pizza verdict (and therefore before Ramdass technically became parole ineligible), the certainty of the verdict was just as much in doubt for that conviction. The plurality, however, finds the Domino's Pizza verdict uncertain yet casts no doubt on the Pizza Hut conviction. How can this possibly be consistent? The plurality never says. Finally, the plurality's approach is entirely boundless. If the kind of "hypothetical future developmen[t]" at issue here is sufficient to make inapplicable, would it *205 be sufficient if, rather than having the possibility of a recent conviction being set aside by post-trial motion, an old prior conviction could be set aside on appeal before judgment had been entered on the Domino's Pizza verdict? Or under a State's postconviction habeas procedure? More to the point, if the mere availability of a post-trial procedure to set aside the verdict is enough, is the same true as well for the mere availability of an appeal or state habeas review, so long as the time had not expired for either? Old convictions necessary for a defendant's parole ineligibility can be set aside under these procedures as well. And under each procedure those prior convictions could potentially be set aside at the crucial moment.[33] It is easy, in this case, to be distracted by the lack of an entry of judgment and the recentness of Ramdass' prior convictions. As the above examples demonstrate, however, these facts tend to detract from, rather than elucidate, the relevant issue. If is inapplicable because at least one of the defendant's prior convictions could be set aside before sentencing (or before the third strike becomes final, or before whatever time the plurality might think is the crucial moment), then it should not matter, under that reasoning, whether it is set aside by post-trial motion, on appeal, or through state (or federal) postconviction relief. What's more, the plurality's reasoning would hold true so long as these procedures are simply available. Accordingly, it would not matter whether a defendant's prior strikes were a day old, a year old, or 100 years old. Nor would it matter that judgment had been entered on those prior convictions. So long as such procedures for setting aside old convictions *206 exist and remain technically available prior to a defendant's capital murder sentencing phase, the defendant's eventual parole ineligibility is just as uncertain at the crucial moment. The plurality, however, never addresses any of this, but surely its holding today is an invitation to such possibilities. Indeed, if these possibilities make inapplicable, does this not invite the very same circumvention of that would result if the rule turned entirely on state law (see ), by allowing a State to render all prior convictions uncertain simply by holding open some theoretical possibility for postconviction relief at all times? Given that appeals and various forms of postconviction relief undermine the certainty of a verdict or a "conviction" every bit as much as does a procedure like Rule 3A:15(b)— indeed, probably more so—the plurality's reasoning either draws an arbitrary line between these types of procedures, or it accepts that all of these possibilities make inapplicable, in which case that due process right is eviscerated entirely.[34] It is abundantly clear that the proclaimed "workable" rule the plurality claims to be following is an illusion. Ante, at 166. No such arbitrary line-drawing is at all necessary to decide this case. It is entirely sufficient simply to hold that Virginia has offered not one reason for doubting that judgment would be entered on the Domino's Pizza robbery verdict or for doubting Ramdass' eventual parole ineligibility. Certainly it has offered no reason for thinking that the possibility *207 of setting aside the Domino's Pizza robbery verdict is at all more likely than the hypothetical future developments rejected in This case thus falls squarely within Though it is unnecessary to decide it here, a guilty verdict is the proper line. A guilty verdict against the defendant is a natural breaking point in the uncertainties inherent in the trial process. Before that time, the burden is on the State to prove the accused's guilt beyond a reasonable doubt. A guilty verdict, however, means that the defendant's presumption of innocence—with all of its attendant trial safeguards—has been overcome. The verdict resolves the central question of the general issue of guilt. It marks the most significant point of the adversary proceeding, and reflects a fundamental shift in the probabilities regarding the defendant's fate. For that reason, it is the proper point at which a line separating the hypothetical from the probable should be drawn. Moreover, because the State itself can use the defendant's prior crimes to argue future dangerousness after a jury has rendered a verdict—as Virginia did here, see and n. 2—that is also the point at which the defendant's right should attach. V In 52 U.S. 362, we stated the standard for granting habeas relief under 28 U.S. C. 2254(d)(1): "A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases." As I have explained, the Virginia Supreme Court applied as if (a) its applicability was controlled entirely by state law and (b) the defendant's parole ineligibility is determined at the exact moment when the sentencing phase occurs. See at 184— 185. But state law does not control ` applicability, nor does the due process right turn on whether the defendant *208 has already been found parole ineligible at the exact moment of sentencing. itself makes this entirely clear. Both aspects of the Virginia Supreme Court's holding, then, applied a "rule that contradicts the governing law set forth in" We also held in Williams that "[a] state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." 52 U.S., at 406. The Virginia Supreme Court's decision was also contrary to in this respect. Because the "hypothetical future developments" rejected in are materially indistinguishable from the future possibility here, the Virginia court's decision is contrary to Even assuming the correct rule had been applied, the Virginia Supreme Court's decision would be an "unreasonable application" of That court held that the Pizza Hut conviction would count as a strike, but not the Domino's Pizza robbery verdict. The only distinction is the lack of an entry of judgment, and the only reason that matters is because the verdict may be set aside by a post-trial motion. But that possibility remains identical for both crimes. To disregard one of those hypothetical possibilities but not the other based on a state-law distinction that has absolutely no relevance to the probability that the verdict will be set aside is an unreasonable application of[35] *20 VI Nothing in the above arguments should distract us from the fact that this is a simple case. The question turns on whether the hypothetical possibility that the trial judge might fail to sign a piece of paper entering judgment on a guilty verdict should mean that the defendant is precluded from arguing his parole ineligibility to the jury. We should also not be distracted by the plurality's red herring—the possibility of setting aside the verdict by a post-trial motion. Not only is that possibility indistinguishable from the nonexhaustive list of hypothetical future possibilities we dismissed in but it also fails to distinguish this case from the many other possibilities that are part of the state criminal justice system, and fails to distinguish Ramdass' convictions from each other. The plurality's convoluted understanding of and its diverse implications necessitate a fair amount of disentangling of its argument. But, once again, this should not divert us from the plain reality of this case. Juries want to know about parole ineligibility. We know how important *210 it is to their life-and-death decisionmaking. We know how misinformed they are likely to be if we do not give them this information. We know has worked,[36] and we know the States have wholeheartedly embraced it.[37] Moreover, we know this jury thought the information was critical; we know this jury misunderstood what a "life" sentence meant; we know this jury would have recommended life instead of death if it had known that Ramdass was parole ineligible; and we know this jury did not get a clear answer to its question. We also know that Virginia entrusts to the jury the solemn duty of recommending life or death for the defendant. Why does the Court insist that the Constitution permits the wool to be pulled over their eyes? I respectfully dissent.

Justice Ginsburg

majority

Clay v. United States

2003-03-04

https://www.courtlistener.com/opinion/122265/clay-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/122265/

2002-026

A motion by a federal prisoner for postconviction relief under 28 U.S. C. § 2255 is subject to a one-year time limitation that generally runs from "the date on which the judgment of conviction becomes final." § 2255, ¶ 6(1). This case concerns the starting date for the one-year limitation. It presents a narrow but recurring question on which courts of appeals have divided: When a defendant in a federal prosecution takes an unsuccessful direct appeal from a judgment of conviction, but does not next petition for a writ of certiorari from this Court, does the judgment become "final" for post-conviction relief purposes (1) when the appellate court issues its mandate affirming the conviction, or, instead, (2) on the date, ordinarily 69 days later, when the time for filing a petition for certiorari expires? In accord with this Court's consistent understanding of finality in the context of collateral review, and the weight of lower court authority, we reject the issuance of the appellate *525 court mandate as the triggering date. For the purpose of starting the clock on § 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction. I In 1997, petitioner Erick Cornell Clay was convicted of arson and distribution of cocaine base in the United States District Court for the Northern District of Indiana. On November 23, 1998, the Court of Appeals for the Seventh Circuit affirmed his convictions. That court's mandate issued on December 15, 1998. See Fed. Rules App. Proc. 40(a)(1) and 41(b) (when no petition for rehearing is filed, a court of appeals' mandate issues 21 days after entry of judgment). Clay did not file a petition for a writ of certiorari. The time in which he could have petitioned for certiorari expired on February 22, 1999, 90 days after entry of the Court of Appeals' judgment, see this Court's Rule 13(1), and 69 days after the issuance of the appellate court's mandate. On February 22, 2000—one year and 69 days after the Court of Appeals issued its mandate and exactly one year after the time for seeking certiorari expired—Clay filed a motion in the District Court, pursuant to 28 U.S. C. § 2255, to vacate, set aside, or correct his sentence. Congress has prescribed "[a] 1-year period of limitation" for such motions "run[ning] from the latest of" four specified dates. § 2255, ¶ 6. Of the four dates, the only one relevant in this case, as in the generality of cases, is the first: "the date on which the judgment of conviction becomes final." § 2255, ¶ 6(1). Relying on Gendron v. United States, 154 F.3d 672, 674 (CA7 1998) (per curiam), the District Court stated that "when a federal prisoner in this circuit does not seek certiorari . . . , the conviction becomes `final' on the date the appellate court issues the mandate in the direct appeal." App. to Pet. for Cert. 8a. Because Clay filed his § 2255 motion *526 more than one year after that date, the court denied the motion as time barred. The Seventh Circuit affirmed. That court declined Clay's "invitation to reconsider our holding in Gendron," although it acknowledged that Gendron's "construction of section 2255 represents the minority view." 30 Fed. Appx. 607, 609 (2002). "Bowing to stare decisis," the court expressed "reluctan[ce] to overrule [its own] recently-reaffirmed precedent without guidance from the Supreme Court." Ibid. The Fourth Circuit has agreed with Gendron's interpretation of § 2255. See United States v. Torres, 211 F.3d 836, 838-842 (2000) (when a federal prisoner does not file a petition for certiorari, his judgment of conviction becomes final for § 2255 purposes upon issuance of the court of appeals' mandate). Six Courts of Appeals have parted ways with the Seventh and Fourth Circuits. These courts hold that, for federal prisoners like Clay who do not file petitions for certiorari following affirmance of their convictions, § 2255's one-year limitation period begins to run when the defendant's time for seeking review by this Court expires.[1] To secure uniformity in the application of § 2255's time constraint, we granted certiorari, 536 U.S. 957 (2002), and now reverse the Seventh Circuit's judgment.[2] *527 II Finality is variously defined; like many legal terms, its precise meaning depends on context. Typically, a federal judgment becomes final for appellate review and 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. See, e. g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996); Restatement (Second) of Judgments § 13, Comment b (1980). For other purposes, finality attaches at a different stage. For example, for certain determinations under the Speedy Trial Act of 1974, 18 U.S. C. § 3161 et seq., and under a now-repealed version of Federal Rule of Criminal Procedure 33, several lower courts have held that finality attends issuance of the appellate court's mandate. See Brief for Amicus Curiae by Invitation of the Court 22-28 (hereinafter DeBruin Brief) (citing cases). For the purpose of seeking review by this Court, in contrast, "[t]he 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)." This Court's Rule 13(3). Here, the relevant context is postconviction relief, a context in which finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. See, e. g., Caspari v. Bohlen, 510 U.S. 383, 390 (1994); Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987); Barefoot v. Estelle, 463 U.S. 880, 887 (1983); United States v. Johnson, 457 U.S. 537, 542, n. 8 (1982); Linkletter v. Walker, 381 U.S. 618, 622, n. 5 (1965). Because "we presume that Congress expects its statutes to be read in conformity with this Court's precedents," United States v. Wells, 519 U.S. 482, 495 (1997), our unvarying understanding *528 of finality for collateral review purposes would ordinarily determine the meaning of "becomes final" in § 2255. Amicus urges a different determinant, relying on verbal differences between § 2255 and a parallel statutory provision, 28 U.S. C. § 2244(d)(1), which governs petitions for federal habeas corpus by state prisoners. See DeBruin Brief 8-20. Sections 2255 and 2244(d)(1), as now formulated, were reshaped by the Antiterrorism and Effective Death Penalty Act of 1996. See §§ 101, 105, 110 Stat. 1217, 1220. Prior to that Act, no statute of limitations governed requests for federal habeas corpus or § 2255 habeas-like relief. See Vasquez v. Hillery, 474 U.S. 254, 265 (1986); United States v. Nahodil, 36 F.3d 323, 328 (CA3 1994). Like § 2255, § 2244(d)(1) establishes a one-year limitation period, running from the latest of four specified dates. Three of the four time triggers under § 2244(d)(1) closely track corresponding portions of § 2255. Compare §§ 2244(d)(1)(B)-(D) with § 2255, ¶ ¶ 6(2)-(4). But where § 2255, ¶ 6(1), refers simply to "the date on which the judgment of conviction becomes final," § 2244(d)(1)(A) speaks of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."[3] When "Congress includes particular language in one section of a statute but omits it in another section of the same Act," we have recognized, "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U. S. *529 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (CA5 1972)). Invoking the maxim recited in Russello, amicus asserts that "becomes final" in § 2255, ¶ 6(1), cannot mean the same thing as "became final" in § 2244(d)(1)(A); reading the two as synonymous, amicus maintains, would render superfluous the words "by the conclusion of direct review or the expiration of the time for seeking such review"—words found only in the latter provision. DeBruin Brief 8-20. We can give effect to the discrete wording of the two prescriptions, amicus urges, if we adopt the following rule: When a convicted defendant does not seek certiorari on direct review, § 2255's limitation period starts to run on the date the court of appeals issues its mandate. Id., at 36.[4] Amicus would have a stronger argument if § 2255, ¶ 6(1), explicitly incorporated the first of § 2244(d)(1)(A)'s finality formulations but not the second, so that the § 2255 text read "becomes final by the conclusion of direct review." Had § 2255 explicitly provided for the first of the two finality triggers set forth in § 2244(d)(1)(A), one might indeed question the soundness of interpreting § 2255 implicitly to incorporate § 2244(d)(1)(A)'s second trigger as well. As written, however, § 2255 does not qualify "becomes final" at all. Using neither of the disjunctive phrases that follow the words "became final" in § 2244(d)(1)(A), § 2255 simply leaves "becomes final" undefined. Russello, we think it plain, hardly warrants the decision amicus urges, one that would hold the § 2255 petitioner to *530 a tighter time constraint than the petitioner governed by § 2244(d)(1)(A). Russello concerned the meaning of a provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S. C. § 1961 et seq., that directed forfeiture to the United States of "any interest [a convicted defendant] has acquired ... in violation of [the Act]." § 1963(a)(1). The petitioner in Russello urged a narrow construction of the unqualified words "any interest . . . acquired." Rejecting that argument, we observed that a succeeding subsection, § 1963(a)(2), reached "any interest in ... any enterprise" the defendant conducted in violation of RICO's proscriptions. (Internal quotation marks omitted.) At that point, we referred to the maxim invoked by amicus. See supra, at 528. The qualifying words "in ... any enterprise" narrowed § 1963(a)(2), but in no way affected § 1963(a)(1). The comparison of the two subsections, we said, "fortified" the broad construction we approved for the unmodified words "any interest ... acquired." Russello, 464 U. S., at 22-23 (internal quotation marks omitted); see id., at 23 ("Had Congress intended to restrict § 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2)."). Far from supporting the Seventh Circuit's constricted reading of § 2255, ¶ 6(1), Russello's reasoning tends in Clay's favor. An unqualified term—here "becomes final"—Russello indicates, calls for a reading surely no less broad than a pinpointed one—here, § 2244(d)(1)(A)'s specification "became final by the conclusion of direct review or the expiration of the time for seeking such review." Moreover, as Clay and the Government urge, see Brief for Petitioner 22; Reply Brief for United States 7-8, one can readily comprehend why Congress might have found it appropriate to spell out the meaning of "final" in § 2244(d)(1)(A) but not in § 2255. Section 2244(d)(1) governs petitions by state prisoners. In that context, a bare reference to "became final" might have suggested that finality assessments *531 should be made by reference to state-law rules that may differ from the general federal rule and vary from State to State. Cf. Artuz v. Bennett, 531 U.S. 4, 8 (2000) (an application for state postconviction relief is "properly filed" for purposes of 28 U.S. C. § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings"). The words "by the conclusion of direct review or the expiration of the time for seeking such review" make it clear that finality for the purpose of § 2244(d)(1)(A) is to be determined by reference to a uniform federal rule. Section 2255, however, governs only petitions by federal prisoners; within the federal system there is no comparable risk of varying rules to guard against. Amicus also submits that 28 U.S. C. § 2263 "reinforces" the Seventh Circuit's understanding of § 2255. DeBruin Brief 20; accord, Torres, 211 F. 3d, at 840. Chapter 154 of Title 28 governs certain habeas petitions filed by death-sentenced state prisoners. Section 2263(a) prescribes a 180-day limitation period for such petitions running from "final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review." That period is tolled, however, "from the date that a petition for certiorari is filed in the Supreme Court until the date of final disposition of the petition if a State prisoner files the petition to secure review by the Supreme Court of the affirmance of a capital sentence on direct review by the court of last resort of the State or other final State court decision on direct review." § 2263(b)(1). We do not find in § 2263 cause to alter our reading of § 2255. First, amicus' reliance on § 2263 encounters essentially the same problem as does his reliance on § 2244(d)(1)(A): Section 2255, ¶ 6(1), refers to neither of the two events that § 2263(a) identifies as possible starting points for the limitation period — "affirmance of the conviction and sentence on direct review" and "the expiration of the time for seeking such review." Thus, reasoning by negative implication from § 2263 *532 does not justify the conclusion that § 2255, ¶ 6(1)'s limitation period begins to run at one of those times rather than the other. Cf. supra, at 529-531. Second, § 2263(a) ties the applicable limitation period to "affirmance of the conviction and sentence," while § 2255, ¶ 6(1), ties the limitation period to the date when "the judgment of conviction becomes final." See Torres, 211 F. 3d, at 845 (Hamilton, J., dissenting). "The Russello presumption—that the presence of a phrase in one provision and its absence in another reveals Congress' design —grows weaker with each difference in the formulation of the provisions under inspection." Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 435-436 (2002). * * * We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires. Under this rule, Clay's § 2255 petition was timely filed. 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.

A motion by a federal prisoner for postconviction relief under 2 U.S. C. 2255 is subject to a one-year time limitation that generally runs from "the date on which the judgment of conviction becomes final." 2255, ¶ 6(1). This case concerns the starting date for the one-year limitation. It presents a narrow but recurring question on which courts of appeals have divided: When a defendant in a federal prosecution takes an unsuccessful direct appeal from a judgment of conviction, but does not next petition for a writ of certiorari from this Court, does the judgment become "final" for post-conviction relief purposes (1) when the appellate court issues its mandate affirming the conviction, or, instead, (2) on the date, ordinarily 69 days later, when the time for filing a petition for certiorari expires? In accord with this Court's consistent understanding of finality in the context of collateral review, and the weight of lower court authority, we reject the issuance of the appellate *525 court mandate as the triggering date. For the purpose of starting the clock on 2255's one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction. I In 1997, petitioner Erick Cornell Clay was convicted of arson and distribution of cocaine base in the United States District Court for the Northern District of Indiana. On November 23, the Court of Appeals for the Seventh Circuit affirmed his convictions. That court's mandate issued on December 15, See Fed. Rules App. Proc. 40(a)(1) and 41(b) (when no petition for rehearing is filed, a court of appeals' mandate issues 21 days after entry of judgment). Clay did not file a petition for a writ of certiorari. The time in which he could have petitioned for certiorari expired on February 22, 1999, 90 days after entry of the Court of Appeals' judgment, see this Court's Rule 13(1), and 69 days after the issuance of the appellate court's mandate. On February 22, —one year and 69 days after the Court of Appeals issued its mandate and exactly one year after the time for seeking certiorari expired—Clay filed a motion in the District Court, pursuant to 2 U.S. C. 2255, to vacate, set aside, or correct his sentence. Congress has prescribed "[a] 1-year period of limitation" for such motions "run[ning] from the latest of" four specified dates. 2255, ¶ 6. Of the four dates, the only one relevant in this case, as in the generality of cases, is the first: "the date on which the judgment of conviction becomes final." 2255, ¶ 6(1). Relying on the District Court stated that "when a federal prisoner in this circuit does not seek certiorari the conviction becomes `final' on the date the appellate court issues the mandate in the direct appeal." App. to Pet. for Cert. a. Because Clay filed his 2255 motion *526 more than one year after that date, the court denied the motion as time barred. The Seventh Circuit affirmed. That court declined Clay's "invitation to reconsider our holding in Gendron," although it acknowledged that Gendron's "construction of section 2255 represents the minority view." "Bowing to stare decisis," the court expressed "reluctan[ce] to overrule [its own] recently-reaffirmed precedent without guidance from the Supreme Court." The Fourth Circuit has agreed with Gendron's interpretation of 2255. See United (when a federal prisoner does not file a petition for certiorari, his judgment of conviction becomes final for 2255 purposes upon issuance of the court of appeals' mandate). Six Courts of Appeals have parted ways with the Seventh and Fourth Circuits. These courts hold that, for federal prisoners like Clay who do not file petitions for certiorari following affirmance of their convictions, 2255's one-year limitation period begins to run when the defendant's time for seeking review by this Court expires.[1] To secure uniformity in the application of 2255's time constraint, we granted certiorari, and now reverse the Seventh Circuit's judgment.[2] *527 II Finality is variously defined; like many legal terms, its precise meaning depends on context. Typically, a federal judgment becomes final for appellate review and 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. See, e. g., ; Restatement (Second) of Judgments 13, Comment b (190). For other purposes, finality attaches at a different stage. For example, for certain determinations under the Speedy Trial Act of 1974, 1 U.S. C. 3161 et seq., and under a now-repealed version of Federal Rule of Criminal Procedure 33, several lower courts have held that finality attends issuance of the appellate court's mandate. See Brief for Amicus Curiae by Invitation of the Court 22-2 (hereinafter DeBruin Brief) (citing cases). For the purpose of seeking review by this Court, in contrast, "[t]he 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)." This Court's Rule 13(3). Here, the relevant context is postconviction relief, a context in which finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires. See, e. g., ; ; ; United ; Because "we presume that Congress expects its statutes to be read in conformity with this Court's precedents," United our unvarying understanding *52 of finality for collateral review purposes would ordinarily determine the meaning of "becomes final" in 2255. Amicus urges a different determinant, relying on verbal differences between 2255 and a parallel statutory provision, 2 U.S. C. 2244(d)(1), which governs petitions for federal habeas corpus by state prisoners. See DeBruin Brief -20. Sections 2255 and 2244(d)(1), as now formulated, were reshaped by the Antiterrorism and Effective Death Penalty Act of 1996. See 101, 105, 1220. Prior to that Act, no statute of limitations governed requests for federal habeas corpus or 2255 habeas-like relief. See ; United Like 2255, 2244(d)(1) establishes a one-year limitation period, running from the latest of four specified dates. Three of the four time triggers under 2244(d)(1) closely track corresponding portions of 2255. Compare 2244(d)(1)(B)-(D) with 2255, ¶ ¶ 6(2)-(4). But where 2255, ¶ 6(1), refers simply to "the date on which the judgment of conviction becomes final," 2244(d)(1)(A) speaks of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."[3] When "Congress includes particular language in one section of a statute but omits it in another section of the same Act," we have recognized, "it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." v. United States, 464 U. S. *529 16, 23 ). Invoking the maxim recited in amicus asserts that "becomes final" in 2255, ¶ 6(1), cannot mean the same thing as "became final" in 2244(d)(1)(A); reading the two as synonymous, amicus maintains, would render superfluous the words "by the conclusion of direct review or the expiration of the time for seeking such review"—words found only in the latter provision. DeBruin Brief -20. We can give effect to the discrete wording of the two prescriptions, amicus urges, if we adopt the following rule: When a convicted defendant does not seek certiorari on direct review, 2255's limitation period starts to run on the date the court of appeals issues its mandate.[4] Amicus would have a stronger argument if 2255, ¶ 6(1), explicitly incorporated the first of 2244(d)(1)(A)'s finality formulations but not the second, so that the 2255 text read "becomes final by the conclusion of direct review." Had 2255 explicitly provided for the first of the two finality triggers set forth in 2244(d)(1)(A), one might indeed question the soundness of interpreting 2255 implicitly to incorporate 2244(d)(1)(A)'s second trigger as well. As written, however, 2255 does not qualify "becomes final" at all. Using neither of the disjunctive phrases that follow the words "became final" in 2244(d)(1)(A), 2255 simply leaves "becomes final" undefined. we think it plain, hardly warrants the decision amicus urges, one that would hold the 2255 petitioner to *530 a tighter time constraint than the petitioner governed by 2244(d)(1)(A). concerned the meaning of a provision in the Racketeer Influenced and Corrupt Organizations Act (RICO), 1 U.S. C. 1961 et seq., that directed forfeiture to the United States of "any interest [a convicted defendant] has acquired in violation of [the Act]." 1963(a)(1). The petitioner in urged a narrow construction of the unqualified words "any interest acquired." Rejecting that argument, we observed that a succeeding subsection, 1963(a)(2), reached "any interest in any enterprise" the defendant conducted in violation of RICO's proscriptions. (Internal quotation marks omitted.) At that point, we referred to the maxim invoked by amicus. See The qualifying words "in any enterprise" narrowed 1963(a)(2), but in no way affected 1963(a)(1). The comparison of the two subsections, we said, "fortified" the broad construction we approved for the unmodified words "any interest acquired." -23 ; see ("Had Congress intended to restrict 1963(a)(1) to an interest in an enterprise, it presumably would have done so expressly as it did in the immediately following subsection (a)(2)."). Far from supporting the Seventh Circuit's constricted reading of 2255, ¶ 6(1), 's reasoning tends in Clay's favor. An unqualified term—here "becomes final"— indicates, calls for a reading surely no less broad than a pinpointed one—here, 2244(d)(1)(A)'s specification "became final by the conclusion of direct review or the expiration of the time for seeking such review." Moreover, as Clay and the Government urge, see Brief for Petitioner 22; Reply Brief for United States 7-, one can readily comprehend why Congress might have found it appropriate to spell out the meaning of "final" in 2244(d)(1)(A) but not in 2255. Section 2244(d)(1) governs petitions by state prisoners. In that context, a bare reference to "became final" might have suggested that finality assessments *531 should be made by reference to state-law rules that may differ from the general federal rule and vary from State to State. (an application for state postconviction relief is "properly filed" for purposes of 2 U.S. C. 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings"). The words "by the conclusion of direct review or the expiration of the time for seeking such review" make it clear that finality for the purpose of 2244(d)(1)(A) is to be determined by reference to a uniform federal rule. Section 2255, however, governs only petitions by federal prisoners; within the federal system there is no comparable risk of varying rules to guard against. Amicus also submits that 2 U.S. C. 2263 "reinforces" the Seventh Circuit's understanding of 2255. DeBruin Brief 20; accord, 211 F. 3d, at 40. Chapter 154 of Title 2 governs certain habeas petitions filed by death-sentenced state prisoners. Section 2263(a) prescribes a 10-day limitation period for such petitions running from "final State court affirmance of the conviction and sentence on direct review or the expiration of the time for seeking such review." That period is tolled, however, "from the date that a petition for certiorari is filed in the Supreme Court until the date of final disposition of the petition if a State prisoner files the petition to secure review by the Supreme Court of the affirmance of a capital sentence on direct review by the court of last resort of the State or other final State court decision on direct review." 2263(b)(1). We do not find in 2263 cause to alter our reading of 2255. First, amicus' reliance on 2263 encounters essentially the same problem as does his reliance on 2244(d)(1)(A): Section 2255, ¶ 6(1), refers to neither of the two events that 2263(a) identifies as possible starting points for the limitation period — "affirmance of the conviction and sentence on direct review" and "the expiration of the time for seeking such review." Thus, reasoning by negative implication from 2263 *532 does not justify the conclusion that 2255, ¶ 6(1)'s limitation period begins to run at one of those times rather than the other. Second, 2263(a) ties the applicable limitation period to "affirmance of the conviction and sentence," while 2255, ¶ 6(1), ties the limitation period to the date when "the judgment of conviction becomes final." See 211 F. 3d, at 45 "The presumption—that the presence of a phrase in one provision and its absence in another reveals Congress' design —grows weaker with each difference in the formulation of the provisions under inspection." * * * We hold that, for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, 2255's one-year limitation period starts to run when the time for seeking such review expires. Under this rule, Clay's 2255 petition was timely filed. 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.

Justice Breyer

majority

Forney v. Apfel

1998-06-22

https://www.courtlistener.com/opinion/118231/forney-v-apfel/

https://www.courtlistener.com/api/rest/v3/clusters/118231/

1997-088

The question in this case is whether a Social Security disability claimant seeking court reversal of an agency decision denying benefits may appeal a district court order remanding the case to the agency for further proceedings. We conclude that the law authorizes such an appeal. I Sandra K. Forney, the petitioner, applied for Social Security disability benefits under § 223 of the Social Security Act, as added, 70 Stat. 815, and as amended, 42 U.S. C. § 423. A Social Security Administration Administrative Law Judge (ALJ) determined (1) that Forney had not worked since the *268 onset of her medical problem, and (2) that she was more than minimally disabled, but (3) that she was not disabled enough to qualify for benefits automatically. Moreover, her disability, (4) while sufficiently serious to prevent her return to her former work (cook, kitchen manager, or baker), (5) was not serious enough to prevent her from holding other jobs available in the economy (such as order clerk or telephone answering service operator). App. 12-28. The ALJ consequently denied her disability claim, id. , at 28, and the Administration's Appeals Council denied Forney's request for review, App. to Pet. for Cert. 39-40; see generally Bowen v.Yuckert, 482 U.S. 137, 140-142 (1987) (setting forth fivepart "disability" test); 20 CFR § 404.1520 (1997) (same). Forney then sought judicial review in Federal District Court. The court found the agency's final determination— that Forney could hold other jobs—inadequately supported because those jobs "require frequent or constant reaching," but the record showed that Forney's "ability to reach is impaired." Forney v. Secretary, Civ. No. 94-6357 (D. Ore., May 1, 1995); App. 127-128. The District Court then entered a judgment, which remanded the case to the agency for further proceedings (pursuant to sentence four of 42 U.S. C. § 405(g)). Id. , at 128. Forney sought to appeal the remand order. She contended that, because the agency had already had sufficient opportunity to prove the existence of other relevant employment (and for other reasons), its denial of benefits should be reversed outright. The Court of Appeals for the Ninth Circuit did not hear her claim, however, for it decided that Forney did not have the legal right to appeal. Forney v. Chater, 108 F.3d 228, 234 (1997). Forney sought certiorari. Both she and the Solicitor General agreed that Forney had the legal right to appeal from the District Court's judgment. The Solicitor General suggested that we reverse the Ninth Circuit and remand the case so that it could hear Forney's appeal. We granted certiorari *269 to consider the merits of this position, and we appointed an amicus to defend the Ninth Circuit's decision. We now agree with Forney and the Solicitor General that the Court of Appeals should have heard Forney's appeal. II Section 1291 of Title 28 of the United States Code grants the "courts of appeals . . . jurisdiction of appeals from all final decisions of the district courts." (Emphasis added.) Forney's appeal falls within the scope of this jurisdictional grant. That is because the District Court entered its judgment under the authority of the special "judicial review" provision of the Social Security Act, which says, in its fourth sentence, that "district court[s]" (reviewing, for example, agency denials of Social Security disability claims) "shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the [agency] with or without remanding the cause for a rehearing," 42 U.S. C. § 405(g) (emphasis added), and which adds, in its eighth sentence, that the "judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions," ibid. (emphases added). This Court has previously held that this statutory language means what it says, namely, that a district court order remanding a Social Security disability benefit claim to the agency for further proceedings is a "final judgment" for purposes of § 1291 and it is, therefore, appealable. Sullivan v. Finkelstein, 496 U.S. 617 (1990); see also Shalala v. Schaefer, 509 U.S. 292, 294 (1993) (statute that requires attorney's fees application to be filed within "thirty days of final judgment" requires filing within 30 days of entry of § 405(g) "sentence four" district court remand order, not within 30 days of final agency decision after remand). *270 Finkelstein is not identical to the case before us. It involved an appeal by the Government; this case involves an appeal by a disability benefits claimant. Moreover, the need for immediate appeal in Finkelstein was arguably greater than that here. The District Court there had invalidated a set of Health and Human Services regulations, and the Government might have found it difficult to obtain appellate review of this matter of general importance. Further, the Court, in Finkelstein, said specifically that it would "express no opinion about appealability" where a party seeks to "appeal on the ground that" the district court should have granted broader relief. 496 U.S., at 623, n. 3. Finkelstein `s logic, however, makes these features of that case irrelevant here. Finkelstein focused upon a "class of orders" that Congress had made "appealable under § 1291." Id., at 628. It reasoned, primarily from the language of § 405(g), that a district court judgment remanding a Social Security disability benefit case fell within that class. Nothing in the language, either of the statute or the Court's opinion, suggests that such an order could be "final" for purposes of appeal only when the Government seeks to appeal but not when the claimant seeks to do so. Nor does the opinion's reasoning permit an inference that "finality" turns on the order's importance or the availability (or lack of availability) of an avenue for appeal from the different, later, agency determination that might emerge after remand. The Ninth Circuit itself recognized that the District Court's judgment was "final" for purposes of appeal, for it said that any effort "to conclude" that a judgment remanding the case is "not final for the claimant" was "inconsistent" with Finkelstein. 108 F. 3d, at 232. The court added that it would be "error for the district court to attempt to retain jurisdiction" after remanding the case; and it wrote that the remand judgment, which ended the "civil action," must be "`final' in a formalistic sense . . . for all parties to it." Ibid. *271 The Court of Appeals nonetheless reached a "no appeal" conclusion—but on a different ground. It pointed out that a "party normally may not appeal [a] decision in its favor." Ibid. (citing Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242 (1939)). And it said that Forney had obtained a decision in her favor here. Because Forney "may, on remand, secure all of the relief she seeks," the court wrote, she is a "prevailing" party and therefore cannot appeal. 108 F.3d, at 232-233. We do not agree. We concede that this Court has held that a "party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit Guaranty Nat. Bank v. Roper, 445 U.S. 326, 333 (1980). But this Court also has clearly stated that a party is "aggrieved" and ordinarily can appeal a decision "granting in part and denying in part the remedy requested." United States v. Jose, 519 U.S. 54, 56 (1996) (per curiam) . And this latter statement determines the outcome of this case. Forney's complaint sought as relief: "1. That this court reverse and set aside the decision . . . denying [the] claim for disability benefits; "2. In the alternative, that this court remand the case back to the Secretary for proper evaluation of the evidence or a hearing de novo. " App. 37. The context makes clear that, from Forney's perspective, the second "alternative," which means further delay and risk, is only half a loaf. Thus, the District Court's order gives petitioner some, but not all, of the relief she requested; and she consequently can appeal the District Court's order insofar as it denies her the relief she has sought. Indeed, to hold to the contrary would deny a disability claimant the right to seek reversal (instead of remand) through a crossappeal in cases where the Government itself appeals a remand *272 order, as the Government has every right to do. See Finkelstein, supra, at 619. The Solicitor General points to many cases that find a right to appeal in roughly comparable circumstances. See Brief for Respondent 21, n. 12 (citing Gargoyles, Inc. v. United States, 113 F.3d 1572 (CA Fed. 1997) (permitting appeal where prevailing party recovered reasonable royalty but was denied lost profits); Castle v. Rubin, 78 F.3d 654 (CADC 1996) (per curiam) (permitting appeal where prevailing party awarded partial backpay but denied reinstatement and front pay); La Plante v. American Honda Motor Co., 27 F.3d 731 (CA1 1994) (permitting appeal where prevailing party awarded compensatory but not punitive damages); Graziano v. Harrison, 950 F.2d 107 (CA3 1991) (permitting appeal where prevailing party awarded damages but denied attorney's fees); Ragen Corp. v. Kearney & Trecker Corp. , 912 F.2d 619 (CA3 1990) (permitting appeal where prevailing party denied consequential damages); Carrigan v. Exxon Co., U. S. A., 877 F.2d 1237 (CA5 1989) (permitting appeal where prevailing party awarded damages but not injunctive relief)). The contrary authority that amicus, through diligent efforts, has found arose in less closely analogous circumstances and consequently does not persuade us. Brief for Amicus Curiae in Support of the Judgment Below 17, and n. 13; see, e. g., Parr v. United States, 351 U.S. 513, 518 (1956) (order granting Government's motion to dismiss indictment without prejudice as not appealable by defendant in part because the dismissal would not be "final" (emphasis added)); see also CH2M Hill Central, Inc. v. Herman, 131 F.3d 1244, 1246— 1247 (CA7 1997) (claimant cannot appeal agency appeals panel remand of case for further agency hearing, for appeals order is not type of final agency decision that is reviewable under relevant judicial review statute); Director, Office of Workers' Compensation Programs v. Bath Iron Works Corp., 853 F.2d 11, 16 (CA1 1988) (same); Stripe-A-Zone v. *273 Occupational Safety and Health Review Comm'rs, 643 F.2d 230, 233 (CA5 1981) (same). Finally, we recognize that the Ninth Circuit expressed concern that a rule of law permitting appeals in these circumstances would impose additional, and unnecessary, burdens upon federal appeals courts. The Solicitor General, while noting that the federal courts reviewed nearly 10,000 Social Security Administration decisions in 1996, says that the "[p]ractical [c]onsequences" of permitting appeals "[a]re limited." Brief for Respondent 26; Reply Brief for Respondent 17, n. 13. Except for unusual cases, he believes, a claimant obtaining a remand will prefer to return to the agency rather than to appeal immediately seeking outright agency reversal—because appeal means further delay, because the chance of obtaining reversal should be small, and because the appeal (if it provokes a Government crossappeal) risks losing all. Brief for Respondent 26-29. Regardless, as we noted in Finkelstein, congressional statutes governing appealability normally proceed by defining "classes" of cases where appeals will (or will not) lie. 496 U.S., at 628. The statutes at issue here do not give courts the power to redefine, or to subdivide, those classes, according to whether or not they believe, in a particular case, further agency proceedings might obviate the need for an immediate appeal. Thus, if the Solicitor General proves wrong in his prediction, the remedy must be legislative in nature. 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

The question in this case is whether a Social Security disability claimant seeking court reversal of an agency decision denying benefits may appeal a district court order remanding the case to the agency for further proceedings. We conclude that the law authorizes such an I Sandra K. Forney, the petitioner, applied for Social Security disability benefits under 223 of the Social Security Act, as added, and as amended, 42 U.S. C. 423. A Social Security Administration Administrative Law Judge (ALJ) determined (1) that Forney had not worked since the *268 onset of her medical problem, and (2) that she was more than minimally disabled, but (3) that she was not disabled enough to qualify for benefits automatically. Moreover, her disability, (4) while sufficiently serious to prevent her return to her former work (cook, kitchen manager, or baker), (5) was not serious enough to prevent her from holding other jobs available in the economy (such as order clerk or telephone answering service operator). App. 12-28. The ALJ consequently denied her disability claim, at 28, and the Administration's Appeals Council denied Forney's request for review, App. to Pet. for Cert. 39-40; see generally Bowen v.Yuckert, ; 20 CFR 404.1520 Forney then sought judicial review in Federal District Court. The court found the agency's final determination— that Forney could hold other jobs—inadequately supported because those jobs "require frequent or constant reaching," but the record showed that Forney's "ability to reach is impaired." Forney v. Secretary, Civ. No. 94-6357 (D. Ore., May 1, 1995); App. 127-128. The District Court then entered a judgment, which remanded the case to the agency for further proceedings (pursuant to sentence four of 42 U.S. C. 405(g)). at 128. Forney sought to appeal the remand order. She contended that, because the agency had already had sufficient opportunity to prove the existence of other relevant employment (and for other reasons), its denial of benefits should be reversed outright. The Court of Appeals for the Ninth Circuit did not hear her claim, however, for it decided that Forney did not have the legal right to Forney sought certiorari. Both she and the Solicitor General agreed that Forney had the legal right to appeal from the District Court's judgment. The Solicitor General suggested that we reverse the Ninth Circuit and remand the case so that it could hear Forney's We granted certiorari *269 to consider the merits of this position, and we appointed an amicus to defend the Ninth Circuit's decision. We now agree with Forney and the Solicitor General that the Court of Appeals should have heard Forney's II Section 1291 of Title 28 of the United States Code grants the "courts of appeals jurisdiction of appeals from all final decisions of the district courts." (Emphasis added.) Forney's appeal falls within the scope of this jurisdictional grant. That is because the District Court entered its judgment under the authority of the special "judicial review" provision of the Social Security Act, which says, in its fourth sentence, that "district court[s]" (reviewing, for example, agency denials of Social Security disability claims) "shall have power to enter a judgment affirming, modifying, or reversing the decision of the [agency] with or without remanding the cause for a rehearing," 42 U.S. C. 405(g) (emphasis added), and which adds, in its eighth sentence, that the "judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions," ib This Court has previously held that this statutory language means what it says, namely, that a district court order remanding a Social Security disability benefit claim to the agency for further proceedings is a "final judgment" for purposes of 1291 and it is, therefore, appealable. ; see also (statute that requires attorney's fees application to be filed within "thirty days of final judgment" requires filing within 30 days of entry of 405(g) "sentence four" district court remand order, not within 30 days of final agency decision after remand). *270 is not identical to the case before us. It involved an appeal by the Government; this case involves an appeal by a disability benefits claimant. Moreover, the need for immediate appeal in was arguably greater than that here. The District Court there had invalidated a set of Health and Human Services regulations, and the Government might have found it difficult to obtain appellate review of this matter of general importance. Further, the Court, in said specifically that it would "express no opinion about appealability" where a party seeks to "appeal on the ground that" the district court should have granted broader n. 3. `s logic, however, makes these features of that case irrelevant here. focused upon a "class of orders" that Congress had made "appealable under 1291." It reasoned, primarily from the language of 405(g), that a district court judgment remanding a Social Security disability benefit case fell within that class. Nothing in the language, either of the statute or the Court's opinion, suggests that such an order could be "final" for purposes of appeal only when the Government seeks to appeal but not when the claimant seeks to do so. Nor does the opinion's reasoning permit an inference that "finality" turns on the order's importance or the availability (or lack of availability) of an avenue for appeal from the different, later, agency determination that might emerge after remand. The Ninth Circuit itself recognized that the District Court's judgment was "final" for purposes of appeal, for it said that any effort "to conclude" that a judgment remanding the case is "not final for the claimant" was "inconsistent" with The court added that it would be "error for the district court to attempt to retain jurisdiction" after remanding the case; and it wrote that the remand judgment, which ended the "civil action," must be "`final' in a formalistic sense for all parties to it." Ib *271 The Court of Appeals nonetheless reached a "no appeal" conclusion—but on a different ground. It pointed out that a "party normally may not appeal [a] decision in its favor." Ib ). And it said that Forney had obtained a decision in her favor here. Because Forney "may, on remand, secure all of the relief she seeks," the court wrote, she is a "prevailing" party and therefore cannot -. We do not agree. We concede that this Court has held that a "party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit Guaranty Nat. But this Court also has clearly stated that a party is "aggrieved" and ordinarily can appeal a decision "granting in part and denying in part the remedy requested." United And this latter statement determines the outcome of this case. Forney's complaint sought as relief: "1. That this court reverse and set aside the decision denying [the] claim for disability benefits; "2. In the alternative, that this court remand the case back to the Secretary for proper evaluation of the evidence or a hearing de novo. " App. 37. The context makes clear that, from Forney's perspective, the second "alternative," which means further delay and risk, is only half a loaf. Thus, the District Court's order gives petitioner some, but not all, of the relief she requested; and she consequently can appeal the District Court's order insofar as it denies her the relief she has sought. Indeed, to hold to the contrary would deny a disability claimant the right to seek reversal (instead of remand) through a crossappeal in cases where the Government itself appeals a remand *272 order, as the Government has every right to do. See The Solicitor General points to many cases that find a right to appeal in roughly comparable circumstances. See Brief for Respondent 21, n. 12 ; (permitting appeal where prevailing party awarded partial backpay but denied reinstatement and front pay); La ; ; Ragen ; ). The contrary authority that amicus, through diligent efforts, has found arose in less closely analogous circumstances and consequently does not persuade us. Brief for Amicus Curiae in Support of the Judgment Below 17, and n. 13; see, e. g., (19) ; see also CH2M Hill Central, ; Director, Office of Workers' Compensation ; Finally, we recognize that the Ninth Circuit expressed concern that a rule of law permitting appeals in these circumstances would impose additional, and unnecessary, burdens upon federal appeals courts. The Solicitor General, while noting that the federal courts reviewed nearly 10,000 Social Security Administration decisions in says that the "[p]ractical [c]onsequences" of permitting appeals "[a]re limited." Brief for Respondent 26; Reply Brief for Respondent 17, n. 13. Except for unusual cases, he believes, a claimant obtaining a remand will prefer to return to the agency rather than to appeal immediately seeking outright agency reversal—because appeal means further delay, because the chance of obtaining reversal should be small, and because the appeal (if it provokes a Government crossappeal) risks losing all. Brief for Respondent 26-29. Regardless, as we noted in congressional statutes governing appealability normally proceed by defining "classes" of cases where appeals will (or will not) 496 U.S., The statutes at issue here do not give courts the power to redefine, or to subdivide, those classes, according to whether or not they believe, in a particular case, further agency proceedings might obviate the need for an immediate Thus, if the Solicitor General proves wrong in his prediction, the remedy must be legislative in nature. 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

Justice Scalia

majority

At&T Mobility LLC v. Concepcion

2011-04-27

https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/

https://www.courtlistener.com/api/rest/v3/clusters/2959735/

2010-040

Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate “valid, irrevocable, and enforce able, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2. We consider whether the FAA prohibits States from condition ing the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. I In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T).1 The con tract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” App. —————— 1 The Concepcions’ original contract was with Cingular Wireless. AT&T acquired Cingular in 2005 and renamed the company AT&T Mobility in 2007. Laster v. AT&T Mobility LLC, 584 F.3d 849, 852, n. 1 (CA9 2009). 2 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court to Pet. for Cert 61a.2 The agreement authorized AT&T to make unilateral amendments, which it did to the arbitra tion provision on several occasions. The version at issue in this case reflects revisions made in December 2006, which the parties agree are controlling. The revised agreement provides that customers may initiate dispute proceedings by completing a one-page No tice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submis sions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer re ceives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.3 The Concepcions purchased AT&T service, which was advertised as including the provision of free phones; they —————— 2 That provision further states that “the arbitrator may not consoli date more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.” App. to Pet. for Cert. 61a. 3 The guaranteed minimum recovery was increased in 2009 to $10,000. Brief for Petitioner 7. Cite as: 563 U. S. ____ (2011) 3 Opinion of the Court were not charged for the phones, but they were charged $30.22 in sales tax based on the phones’ retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. The complaint was later consoli dated with a putative class action alleging, among other things, that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion, contending that the ar bitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed classwide procedures. The District Court denied AT&T’s motion. It described AT&T’s arbitration agreement fa vorably, noting, for example, that the informal dispute resolution process was “quick, easy to use” and likely to “promp[t] full or . . . even excess payment to the customer without the need to arbitrate or litigate”; that the $7,500 premium functioned as “a substantial inducement for the consumer to pursue the claim in arbitration” if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. Laster v. T-Mobile USA, Inc., 2008 WL 5216255, *11–*12 (SD Cal., Aug. 11, 2008). Nevertheless, relying on the California Supreme Court’s decision in Discover Bank v. Superior Court, 36 Cal. 4th 148, 113 P.3d 1100 (2005), the court found that the arbitration provision was unconscionable because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. Laster, 2008 WL 5216255, *14. The Ninth Circuit affirmed, also finding the provision unconscionable under California law as announced in Discover Bank. Laster v. AT&T Mobility LLC, 584 F.3d 849, 855 (2009). It also held that the Discover Bank rule was not preempted by the FAA because that rule was 4 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court simply “a refinement of the unconscionability analysis applicable to contracts generally in California.” 584 F.3d, at 857. In response to AT&T’s argument that the Con cepcions’ interpretation of California law discriminated against arbitration, the Ninth Circuit rejected the conten tion that “ ‘class proceedings will reduce the efficiency and expeditiousness of arbitration’ ” and noted that “ ‘Discover Bank placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.’ ” Id., at 858 (quoting Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976, 990 (CA9 2007)). We granted certiorari, 560 U. S. ___ (2010). II The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 581 (2008). Section 2, the “primary substantive provision of the Act,” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), provides, in relevant part, as follows: “A written provision in any maritime transaction or a contract evidencing a transaction involving com merce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2. We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone, supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ____ , ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration Cite as: 563 U. S. ____ (2011) 5 Opinion of the Court agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006), and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989). The final phrase of §2, however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable con tract defenses, such as fraud, duress, or unconscionabil ity,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996); see also Perry v. Thomas, 482 U.S. 483, 492–493, n. 9 (1987). The question in this case is whether §2 preempts California’s rule clas sifying most collective-arbitration waivers in consumer contracts as unconscionable. We refer to this rule as the Discover Bank rule. Under California law, courts may refuse to enforce any contract found “to have been unconscionable at the time it was made,” or may “limit the application of any uncon scionable clause.” Cal. Civ. Code Ann. §1670.5(a) (West 1985). A finding of unconscionability requires “a ‘proce dural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” Armen dariz v. Foundation Health Pyschcare Servs., Inc., 24 Cal. 4th 83, 114, 6 P.3d 669, 690 (2000); accord, Discover Bank, 36 Cal. 4th, at 159–161, 113 P.3d, at 1108. In Discover Bank, the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows: “[W]hen the waiver is found in a consumer contract of 6 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con sumers out of individually small sums of money, then . . . the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are uncon scionable under California law and should not be en forced.” Id., at 162, 113 P. 3d, at 1110 (quoting Cal. Civ. Code Ann. §1668). California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc., 142 Cal. App. 4th 1442, 1451–1453, 48 Cal. Rptr. 3d 813, 819–821 (2006); Klussman v. Cross Country Bank, 134 Cal. App. 4th 1283, 1297, 36 Cal Rptr. 3d 728, 738–739 (2005); Aral v. EarthLink, Inc., 134 Cal. App. 4th 544, 556–557, 36 Cal. Rptr. 3d 229, 237–239 (2005). III A The Concepcions argue that the Discover Bank rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under FAA §2. Moreover, they argue that even if we construe the Discover Bank rule as a prohibition on collective-action waivers rather than simply an application of unconscionability, the rule would still be applicable to all dispute-resolution contracts, since California prohibits waivers of class litigation as well. See America Online, Inc. v. Superior Ct., 90 Cal. App. 4th 1, 17–18, 108 Cal. Rptr. 2d 699, 711–713 (2001). When state law prohibits outright the arbitration of a Cite as: 563 U. S. ____ (2011) 7 Opinion of the Court particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, 552 U.S. 346, 353 (2008). But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. In Perry v. Thomas, 482 U.S. 483 (1987), for example, we noted that the FAA’s preemptive effect might extend even to grounds tradition ally thought to exist “ ‘at law or in equity for the revocation of any contract.’ ” Id., at 492, n. 9 (emphasis deleted). We said that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what . . . the state legislature cannot.” Id., at 493, n. 9. An obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to pro vide for judicially monitored discovery. The rationaliza tions for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover Bank. A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory—re stricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. See Discover Bank, supra, at 161, 113 P. 3d, at 1109 (arguing that class waivers are similarly one-sided). And, the reasoning would continue, because such a rule applies the general principle of uncon scionability or public-policy disapproval of exculpatory agreements, it is applicable to “any” contract and thus preserved by §2 of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration 8 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court agreements; but it would presumably apply to contracts purporting to restrict discovery in litigation as well. Other examples are easy to imagine. The same argu ment might apply to a rule classifying as unconscionable arbitration agreements that fail to abide by the Federal Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed “a panel of twelve lay arbitra tors” to help avoid preemption). Such examples are not fanciful, since the judicial hostility towards arbitration that prompted the FAA had manifested itself in “a great variety” of “devices and formulas” declaring arbitration against public policy. Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 406 (CA2 1959). And al though these statistics are not definitive, it is worth not ing that California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. Broome, An Unconscionable Application of the Uncon scionability Doctrine: How the California Courts are Cir cumventing the Federal Arbitration Act, 3 Hastings Bus. L. J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186–187 (2004). The Concepcions suggest that all this is just a parade of horribles, and no genuine worry. “Rules aimed at destroy ing arbitration” or “demanding procedures incompatible with arbitration,” they concede, “would be preempted by the FAA because they cannot sensibly be reconciled with Section 2.” Brief for Respondents 32. The “grounds” available under §2’s saving clause, they admit, “should not be construed to include a State’s mere preference for pro cedures that are incompatible with arbitration and ‘would wholly eviscerate arbitration agreements.’ ” Id., at 33 (quoting Carter v. SSC Odin Operating Co., LLC, 237 Ill. 2d 30, 50, 927 N.E.2d 1207, 1220 (2010)).4 —————— 4 The dissent seeks to fight off even this eminently reasonable conces Cite as: 563 U. S. ____ (2011) 9 Opinion of the Court We largely agree. Although §2’s saving clause preserves generally applicable contract defenses, nothing in it sug gests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Cf. Geier v. American Honda Motor Co., 529 U.S. 861, 872 (2000); Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 (2000). As we have said, a federal statute’s saving clause “ ‘cannot in reason be construed as [allowing] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.’ ” American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 524 U.S. 214, 227–228 (1998) (quoting Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907)). We differ with the Concepcions only in the application of this analysis to the matter before us. We do not agree that rules requiring judicially monitored discovery or adher ence to the Federal Rules of Evidence are “a far cry from this case.” Brief for Respondents 32. The overarching purpose of the FAA, evident in the text of §§2, 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbi tration interferes with fundamental attributes of arbitra tion and thus creates a scheme inconsistent with the FAA. B The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to —————— sion. It says that to its knowledge “we have not . . . applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings,” post, at 10 (opinion of BREYER, J.), and that “we should think more than twice before invalidating a state law that . . . puts agreements to arbitrate and agreements to litigate ‘upon the same footing’ ” post, at 4–5. 10 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court their terms.” Volt, 489 U.S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accor dance with the terms of the agreement” upon the motion of either party to the agreement (assuming that the “making of the arbitration agreement or the failure . . . to perform the same” is not at issue). In light of these provisions, we have held that parties may agree to limit the issues subject to arbitration, Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985), to arbitrate according to specific rules, Volt, supra, at 479, and to limit with whom a party will arbitrate its disputes, Stolt-Nielsen, supra, at ___ (slip op., at 19). The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be speci fied, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and in creasing the speed of dispute resolution. 14 Penn Plaza LLC v. Pyett, 556 U. S. ___, ___ (2009) (slip op., at 20); Mitsubishi Motors Corp., supra, at 628. The dissent quotes Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219 (1985), as “ ‘reject[ing] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.’ ” Post, at 4 (opinion of BREYER, J.). That is greatly misleading. After saying (accurately enough) that “the overriding goal of the Arbitration Act was [not] to promote the expeditious reso Cite as: 563 U. S. ____ (2011) 11 Opinion of the Court lution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate,” 470 U.S., at 219, Dean Witter went on to explain: “This is not to say that Congress was blind to the potential benefit of the legisla tion for expedited resolution of disputes. Far from it . . . .” Id., at 220. It then quotes a House Report saying that “the costliness and delays of litigation . . . can be largely eliminated by agreements for arbitration.” Ibid. (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (1924)). The concluding paragraph of this part of its discussion begins as follows: “We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act—enforcement of private agreements and encour agement of efficient and speedy dispute resolution— must be resolved in favor of the latter in order to real ize the intent of the drafters.” 470 U.S., at 221. In the present case, of course, those “two goals” do not conflict—and it is the dissent’s view that would frustrate both of them. Contrary to the dissent’s view, our cases place it beyond dispute that the FAA was designed to promote arbitration. They have repeatedly described the Act as “embod[ying] [a] national policy favoring arbitration,” Buckeye Check Cashing, 546 U.S., at 443, and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,” Moses H. Cone, 460 U.S., at 24; see also Hall Street As socs., 552 U.S., at 581. Thus, in Preston v. Ferrer, holding preempted a state-law rule requiring exhaustion of admin istrative remedies before arbitration, we said: “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ ” which objective would be “frustrated” by requiring a dispute to be heard by an agency first. 552 U.S., at 357–358. That 12 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court rule, we said, would “at the least, hinder speedy resolution of the controversy.” Id., at 358.5 California’s Discover Bank rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion con tracts, Discover Bank, 36 Cal. 4th, at 162–163, 113 P.3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6 Carbajal v. H&R Block Tax Servs., Inc., 372 F.3d 903, 906 (CA7 2004); see also Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1149 (CA7 1997). The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. Discover Bank, supra, at 162–163, 113 P.3d, at 1110. The former requirement, however, is —————— 5 Relying upon nothing more indicative of congressional understand ing than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact . . . [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] never theless held . . . that agreements to arbitrate in that context are en forceable.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 33 (1991); see also id., at 32–33 (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 1967 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration. 6 Of course States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action waiver provisions in adhesive agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms. Cite as: 563 U. S. ____ (2011) 13 Opinion of the Court toothless and malleable (the Ninth Circuit has held that damages of $4,000 are sufficiently small, see Oestreicher v. Alienware Corp., 322 Fed. Appx. 489, 492 (2009) (unpub lished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Dis cover Bank, and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis. Although we have had little occasion to examine class wide arbitration, our decision in Stolt-Nielsen is instruc tive. In that case we held that an arbitration panel ex ceeded its power under §10(a)(4) of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background prin ciple of contract law that would affect its interpretation. 559 U. S., at ___ (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow them because the “changes brought about by the shift from bilateral arbitration to class-action arbitration” are “fun damental.” Id., at ___ (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes. Confidentiality becomes more difficult. And while it is theoretically possible to select an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover Bank rather than consensual, is inconsistent with the FAA. 14 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its in formality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. “In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U. S., at ___ (slip op., at 21). But before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be certified, whether the named parties are suffi ciently representative and typical, and how discovery for the class should be conducted. A cursory comparison of bilateral and class arbitration illustrates the difference. According to the American Arbitration Association (AAA), the average consumer arbitration between January and August 2007 resulted in a disposition on the merits in six months, four months if the arbitration was conducted by documents only. AAA, Analysis of the AAA’s Con sumer Arbitration Caseload, online at http://www.adr.org/ si.asp?id=5027 (all Internet materials as visited Apr. 25, 2011, and available in Clerk of Court’s case file). As of September 2009, the AAA had opened 283 class arbitra tions. Of those, 121 remained active, and 162 had been settled, withdrawn, or dismissed. Not a single one, how ever, had resulted in a final award on the merits. Brief for AAA as Amicus Curiae in Stolt-Nielsen, O. T. 2009, No. 08–1198, pp. 22–24. For those cases that were no longer active, the median time from filing to settlement, with drawal, or dismissal—not judgment on the merits—was 583 days, and the mean was 630 days. Id., at 24.7 —————— 7 The dissent claims that class arbitration should be compared to class litigation, not bilateral arbitration. Post, at 6–7. Whether arbi Cite as: 563 U. S. ____ (2011) 15 Opinion of the Court Second, class arbitration requires procedural formality. The AAA’s rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class litigation. Com pare AAA, Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003), online at http://www.adr.org/ sp.asp?id=21936, with Fed. Rule Civ. Proc. 23. And while parties can alter those procedures by contract, an alterna tive is not obvious. If procedures are too informal, absent class members would not be bound by the arbitration. For a class-action money judgment to bind absentees in litiga tion, class representatives must at all times adequately represent absent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811–812 (1985). At least this amount of process would presumably be required for ab sent parties to be bound by the results of arbitration. We find it unlikely that in passing the FAA Congress meant to leave the disposition of these procedural re quirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover Bank, class arbitration is a “relatively recent development.” 36 Cal. 4th, at 163, 113 P. 3d, at 1110. And it is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied. Third, class arbitration greatly increases risks to defen dants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their —————— trating a class is more desirable than litigating one, however, is not relevant. A State cannot defend a rule requiring arbitration-by-jury by saying that parties will still prefer it to trial-by-jury. 16 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thou sands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail, see, e.g., Kohen v. Pacific Inv. Management Co. LLC, 571 F.3d 672, 677–678 (CA7 2009), and class arbitration would be no different. Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a defendant may appeal a certifi cation decision on an interlocutory basis and, if unsuccess ful, may appeal from a final judgment as well. Questions of law are reviewed de novo and questions of fact for clear error. In contrast, 9 U.S. C. §10 allows a court to vacate an arbitral award only where the award “was procured by corruption, fraud, or undue means”; “there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of misconduct in refusing to postpone the hearing . . . or in refusing to hear evidence pertinent and material to the controversy[,] or of any other misbehavior by which the rights of any party have been prejudiced”; or if the “arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award . . . was not made.” The AAA rules do authorize judicial re view of certification decisions, but this review is unlikely to have much effect given these limitations; review un der §10 focuses on misconduct rather than mistake. And parties may not contractually expand the grounds or nature of judicial review. Hall Street Assocs., 552 U.S., at 578. We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to Cite as: 563 U. S. ____ (2011) 17 Opinion of the Court allow state courts to force such a decision.8 The Concepcions contend that because parties may and sometimes do agree to aggregation, class procedures are not necessarily incompatible with arbitration. But the same could be said about procedures that the Concepcions admit States may not superimpose on arbitration: Parties could agree to arbitrate pursuant to the Federal Rules of Civil Procedure, or pursuant to a discovery process rival ing that in litigation. Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expecta tions. Rent-A-Center, West, 561 U. S., at ___ (slip op., at 3). But what the parties in the aforementioned examples would have agreed to is not arbitration as envisioned by the FAA, lacks its benefits, and therefore may not be required by state law. The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. See post, at 9. But States can not require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As noted earlier, the arbitration agreement provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney’s fees if they obtain an arbitration award greater than AT&T’s last settlement offer. The District Court —————— 8 The dissent cites three large arbitration awards (none of which stems from classwide arbitration) as evidence that parties are willing to submit large claims before an arbitrator. Post, at 7–8. Those examples might be in point if it could be established that the size of the arbitral dispute was predictable when the arbitration agreement was entered. Otherwise, all the cases prove is that arbitrators can give huge awards—which we have never doubted. The point is that in class action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a classwide basis will have a substantial deterrent effect on incen tives to arbitrate. 18 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be “essen tially guarantee[d]” to be made whole, 584 F.3d, at 856, n. 9. Indeed, the District Court concluded that the Concep cions were better off under their arbitration agreement with AT&T than they would have been as participants in a class action, which “could take months, if not years, and which may merely yield an opportunity to submit a claim for recovery of a small percentage of a few dollars.” Laster, 2008 WL 5216255, at *12. * * * Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Con gress,” Hines v. Davidowitz, 312 U.S. 52, 67 (1941), Cali fornia’s Discover Bank rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. ____ (2011) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 09–893 _________________ AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Section 2 of the Federal Arbitration Act (FAA) makes agreements to arbitrate “valid, irrevocable, and enforce able, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We consider whether the FAA prohibits States from condition ing the enforceability of certain arbitration agreements on the availability of classwide arbitration procedures. I In February 2002, Vincent and Liza Concepcion entered into an agreement for the sale and servicing of cellular telephones with AT&T Mobility LCC (AT&T).1 The con tract provided for arbitration of all disputes between the parties, but required that claims be brought in the parties’ “individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding.” App. —————— 1 The Concepcions’ original contract was with Cingular Wireless. AT&T acquired Cingular in and renamed the company AT&T Mobility in n. 1 2 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court to Pet. for Cert 61a.2 The agreement authorized AT&T to make unilateral amendments, which it did to the arbitra tion provision on several occasions. The version at issue in this case reflects revisions made in December 2006, which the parties agree are controlling. The revised agreement provides that customers may initiate dispute proceedings by completing a one-page No tice of Dispute form available on AT&T’s Web site. AT&T may then offer to settle the claim; if it does not, or if the dispute is not resolved within 30 days, the customer may invoke arbitration by filing a separate Demand for Arbitration, also available on AT&T’s Web site. In the event the parties proceed to arbitration, the agreement specifies that AT&T must pay all costs for nonfrivolous claims; that arbitration must take place in the county in which the customer is billed; that, for claims of $10,000 or less, the customer may choose whether the arbitration proceeds in person, by telephone, or based only on submis sions; that either party may bring a claim in small claims court in lieu of arbitration; and that the arbitrator may award any form of individual relief, including injunctions and presumably punitive damages. The agreement, more over, denies AT&T any ability to seek reimbursement of its attorney’s fees, and, in the event that a customer re ceives an arbitration award greater than AT&T’s last written settlement offer, requires AT&T to pay a $7,500 minimum recovery and twice the amount of the claimant’s attorney’s fees.3 The Concepcions purchased AT&T service, which was advertised as including the provision of free phones; they —————— 2 That provision further states that “the arbitrator may not consoli date more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.” App. to Pet. for Cert. 61a. 3 The guaranteed minimum recovery was increased in to $10,000. Brief for Petitioner 7. Cite as: 563 U. S. (2011) 3 Opinion of the Court were not charged for the phones, but they were charged $30.22 in sales tax based on the phones’ retail value. In March 2006, the Concepcions filed a complaint against AT&T in the United States District Court for the Southern District of California. The complaint was later consoli dated with a putative class action alleging, among other things, that AT&T had engaged in false advertising and fraud by charging sales tax on phones it advertised as free. In March 2008, AT&T moved to compel arbitration under the terms of its contract with the Concepcions. The Concepcions opposed the motion, contending that the ar bitration agreement was unconscionable and unlawfully exculpatory under California law because it disallowed classwide procedures. The District Court denied AT&T’s motion. It described AT&T’s arbitration agreement fa vorably, noting, for example, that the informal dispute resolution process was “quick, easy to use” and likely to “promp[t] full or even excess payment to the customer without the need to arbitrate or litigate”; that the $7,500 premium functioned as “a substantial inducement for the consumer to pursue the claim in arbitration” if a dispute was not resolved informally; and that consumers who were members of a class would likely be worse off. Laster v. T-Mobile USA, Inc., *11–*12 Nevertheless, relying on the California Supreme Court’s decision in Discover the court found that the arbitration provision was unconscionable because AT&T had not shown that bilateral arbitration adequately substituted for the deterrent effects of class actions. Laster, The Ninth Circuit affirmed, also finding the provision unconscionable under California law as announced in Discover 584 F.3d 849, 855 It also held that the Discover rule was not preempted by the FAA because that rule was 4 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court simply “a refinement of the unconscionability analysis applicable to contracts generally in California.” 584 F.3d, at 857. In response to AT&T’s argument that the Con cepcions’ interpretation of California law discriminated against arbitration, the Ninth Circuit rejected the conten tion that “ ‘class proceedings will reduce the efficiency and expeditiousness of arbitration’ ” and noted that “ ‘Discover placed arbitration agreements with class action waivers on the exact same footing as contracts that bar class action litigation outside the context of arbitration.’ ” ). We granted certiorari, 560 U. S. II The FAA was enacted in 1925 in response to widespread judicial hostility to arbitration agreements. See Hall Street Associates, L. L. 581 Section 2, the “primary substantive provision of the Act,” Moses H. Memorial provides, in relevant part, as follows: “A written provision in any maritime transaction or a contract evidencing a transaction involving com merce to settle by arbitration a controversy thereafter arising out of such contract or transaction shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. at and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson, 561 U. S. (slip op., at 3). In line with these principles, courts must place arbitration Cite as: 563 U. S. (2011) 5 Opinion of the Court agreements on an equal footing with other contracts, Buckeye Check 443 (2006), and enforce them according to their terms, Information Sciences, The final phrase of however, permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by “generally applicable con tract defenses, such as fraud, duress, or unconscionabil ity,” but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. Doctor’s Associates, Inc. v. Casarotto, ; see also Perry v. Thomas, The question in this case is whether preempts California’s rule clas sifying most collective-arbitration waivers in consumer contracts as unconscionable. We refer to this rule as the Discover rule. Under California law, courts may refuse to enforce any contract found “to have been unconscionable at the time it was made,” or may “limit the application of any uncon scionable clause.” Cal. Civ. Code Ann. A finding of unconscionability requires “a ‘proce dural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” Armen dariz v. Foundation Health Pyschcare Servs., Inc., Cal. 4th 83, 114, ; accord, Discover –, In Discover the California Supreme Court applied this framework to class-action waivers in arbitration agreements and held as follows: “[W]hen the waiver is found in a consumer contract of 6 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of con sumers out of individually small sums of money, then the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ Under these circumstances, such waivers are uncon scionable under California law and should not be en forced.” (quoting Cal. Civ. Code Ann. California courts have frequently applied this rule to find arbitration agreements unconscionable. See, e.g., Cohen v. DirecTV, Inc., 1451–1453, 48 Cal. Rptr. 3d 813, 819–821 (2006); Klussman v. Cross Country 36 Cal Rptr. 3d 728, 738–739 ; III A The Concepcions argue that the Discover rule, given its origins in California’s unconscionability doctrine and California’s policy against exculpation, is a ground that “exist[s] at law or in equity for the revocation of any contract” under FAA Moreover, they argue that even if we construe the Discover rule as a prohibition on collective-action waivers rather than simply an application of unconscionability, the rule would still be applicable to all dispute-resolution contracts, since California prohibits waivers of class litigation as well. See America Online, 17–18, 108 Cal. Rptr. 2d 699, 711–713 (2001). When state law prohibits outright the arbitration of a Cite as: 563 U. S. (2011) 7 Opinion of the Court particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. Preston v. Ferrer, But the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration. In for example, we noted that the FAA’s preemptive effect might extend even to grounds tradition ally thought to exist “ ‘at law or in equity for the revocation of any contract.’ ” We said that a court may not “rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what the state legislature cannot.” An obvious illustration of this point would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to pro vide for judicially monitored discovery. The rationaliza tions for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might simply say that such agreements are exculpatory—re stricting discovery would be of greater benefit to the company than the consumer, since the former is more likely to be sued than to sue. See Discover at (arguing that class waivers are similarly one-sided). And, the reasoning would continue, because such a rule applies the general principle of uncon scionability or public-policy disapproval of exculpatory agreements, it is applicable to “any” contract and thus preserved by of the FAA. In practice, of course, the rule would have a disproportionate impact on arbitration 8 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court agreements; but it would presumably apply to contracts purporting to restrict discovery in litigation as well. Other examples are easy to imagine. The same argu ment might apply to a rule classifying as unconscionable arbitration agreements that fail to abide by the Federal Rules of Evidence, or that disallow an ultimate disposition by a jury (perhaps termed “a panel of twelve lay arbitra tors” to help avoid preemption). Such examples are not fanciful, since the judicial hostility towards arbitration that prompted the FAA had manifested itself in “a great variety” of “devices and formulas” declaring arbitration against public policy. Robert Lawrence And al though these statistics are not definitive, it is worth not ing that California’s courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. Broome, An Unconscionable Application of the Uncon scionability Doctrine: How the California Courts are Cir cumventing the Federal Arbitration Act, 3 Hastings Bus. L. J. 39, 54, 66 (2006); Randall, Judicial Attitudes Toward Arbitration and the Resurgence of Unconscionability, 52 Buffalo L. Rev. 185, 186–187 (2004). The Concepcions suggest that all this is just a parade of horribles, and no genuine worry. “Rules aimed at destroy ing arbitration” or “demanding procedures incompatible with arbitration,” they concede, “would be preempted by the FAA because they cannot sensibly be reconciled with Section 2.” Brief for Respondents 32. The “grounds” available under ’s saving clause, they admit, “should not be construed to include a State’s mere preference for pro cedures that are incompatible with arbitration and ‘would wholly eviscerate arbitration agreements.’ ” ).4 —————— 4 The dissent seeks to fight off even this eminently reasonable conces Cite as: 563 U. S. (2011) 9 Opinion of the Court We largely agree. Although ’s saving clause preserves generally applicable contract defenses, nothing in it sug gests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives. Cf. ; Crosby v. National Foreign Trade Council, 530 U.S. 363, 372–373 As we have said, a federal statute’s saving clause “ ‘cannot in reason be construed as [allowing] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.’ ” American Telephone & Telegraph Co. v. Central Office Telephone, Inc., 5 U.S. 214, 227–228 (1998) ). We differ with the Concepcions only in the application of this analysis to the matter before us. We do not agree that rules requiring judicially monitored discovery or adher ence to the Federal Rules of Evidence are “a far cry from this case.” Brief for Respondents 32. The overarching purpose of the FAA, evident in the text of § 3, and 4, is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. Requiring the availability of classwide arbi tration interferes with fundamental attributes of arbitra tion and thus creates a scheme inconsistent with the FAA. B The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to —————— sion. It says that to its knowledge “we have not applied the Act to strike down a state statute that treats arbitrations on par with judicial and administrative proceedings,” post, at 10 (opinion of BREYER, J.), and that “we should think more than twice before invalidating a state law that puts agreements to arbitrate and agreements to litigate ‘upon the same footing’ ” post, at 4–5. 10 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court their terms.” 489 U.S., at ; see also S. A. v. AnimalFeeds Int’l 559 U. S. (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and requires courts to compel arbitration “in accor dance with the terms of the agreement” upon the motion of either party to the agreement (assuming that the “making of the arbitration agreement or the failure to perform the same” is not at issue). In light of these provisions, we have held that parties may agree to limit the issues subject to arbitration, Mitsubishi Motors to arbitrate according to specific rules, and to limit with whom a party will arbitrate its disputes, at (slip op., at 19). The point of affording parties discretion in designing arbitration processes is to allow for efficient, streamlined procedures tailored to the type of dispute. It can be speci fied, for example, that the decisionmaker be a specialist in the relevant field, or that proceedings be kept confidential to protect trade secrets. And the informality of arbitral proceedings is itself desirable, reducing the cost and in creasing the speed of dispute resolution. 14 Penn Plaza LLC v. Pyett, 556 U. S. (slip op., at 20); Mitsubishi Motors at The dissent quotes Dean Witter Reynolds as “ ‘reject[ing] the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims.’ ” Post, at 4 (opinion of BREYER, J.). That is greatly misleading. After saying (accurately enough) that “the overriding goal of the Arbitration Act was [not] to promote the expeditious reso Cite as: 563 U. S. (2011) 11 Opinion of the Court lution of claims,” but to “ensure judicial enforcement of privately made agreements to arbitrate,” 470 U.S., at Dean Witter went on to explain: “This is not to say that Congress was blind to the potential benefit of the legisla tion for expedited resolution of disputes. Far from it” It then quotes a House Report saying that “the costliness and delays of litigation can be largely eliminated by agreements for arbitration.” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 2 (19)). The concluding paragraph of this part of its discussion begins as follows: “We therefore are not persuaded by the argument that the conflict between two goals of the Arbitration Act—enforcement of private agreements and encour agement of efficient and speedy dispute resolution— must be resolved in favor of the latter in order to real ize the intent of the drafters.” In the present case, of course, those “two goals” do not conflict—and it is the dissent’s view that would frustrate both of them. Contrary to the dissent’s view, our cases place it beyond dispute that the FAA was designed to promote arbitration. They have repeatedly described the Act as “embod[ying] [a] national policy favoring arbitration,” Buckeye Check and “a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary,” Moses H. 460 U.S., at ; see also Hall Street As Thus, in Preston v. Ferrer, holding preempted a state-law rule requiring exhaustion of admin istrative remedies before arbitration, we said: “A prime objective of an agreement to arbitrate is to achieve ‘streamlined proceedings and expeditious results,’ ” which objective would be “frustrated” by requiring a dispute to be heard by an agency –358. That 12 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court rule, we said, would “at the least, hinder speedy resolution of the controversy.”5 California’s Discover rule similarly interferes with arbitration. Although the rule does not require classwide arbitration, it allows any party to a consumer contract to demand it ex post. The rule is limited to adhesion con tracts, Discover 36 Cal. 4th, –163, 113 P.3d, at 1110, but the times in which consumer contracts were anything other than adhesive are long past.6 Carbajal v. H&R Block Tax Servs., Inc., (CA7 2004); see also Hill v. Gateway Inc., 1149 (CA7 1997). The rule also requires that damages be predictably small, and that the consumer allege a scheme to cheat consumers. Discover –163, The former requirement, however, is —————— 5 Relying upon nothing more indicative of congressional understand ing than statements of witnesses in committee hearings and a press release of Secretary of Commerce Herbert Hoover, the dissent suggests that Congress “thought that arbitration would be used primarily where merchants sought to resolve disputes of fact [and] possessed roughly equivalent bargaining power.” Post, at 6. Such a limitation appears nowhere in the text of the FAA and has been explicitly rejected by our cases. “Relationships between securities dealers and investors, for example, may involve unequal bargaining power, but we [have] never theless held that agreements to arbitrate in that context are en forceable.” Gilmer v. Interstate/Johnson Lane (1991); see also at 32– (allowing arbitration of claims arising under the Age Discrimination in Employment Act of 19 despite allegations of unequal bargaining power between employers and employees). Of course the dissent’s disquisition on legislative history fails to note that it contains nothing—not even the testimony of a stray witness in committee hearings—that contemplates the existence of class arbitration. 6 Of course States remain free to take steps addressing the concerns that attend contracts of adhesion—for example, requiring class-action waiver provisions in adhesive agreements to be highlighted. Such steps cannot, however, conflict with the FAA or frustrate its purpose to ensure that private arbitration agreements are enforced according to their terms. Cite as: 563 U. S. (2011) 13 Opinion of the Court toothless and malleable (unpub lished)), and the latter has no limiting effect, as all that is required is an allegation. Consumers remain free to bring and resolve their disputes on a bilateral basis under Dis cover and some may well do so; but there is little incentive for lawyers to arbitrate on behalf of individuals when they may do so for a class and reap far higher fees in the process. And faced with inevitable class arbitration, companies would have less incentive to continue resolving potentially duplicative claims on an individual basis. Although we have had little occasion to examine class wide arbitration, our decision in is instruc tive. In that case we held that an arbitration panel ex ceeded its power under of the FAA by imposing class procedures based on policy judgments rather than the arbitration agreement itself or some background prin ciple of contract law that would affect its interpretation. 559 U. S., at (slip op., at 20–23). We then held that the agreement at issue, which was silent on the question of class procedures, could not be interpreted to allow them because the “changes brought about by the shift from bilateral arbitration to class-action arbitration” are “fun damental.” at (slip op., at 22). This is obvious as a structural matter: Classwide arbitration includes absent parties, necessitating additional and different procedures and involving higher stakes. Confidentiality becomes more difficult. And while it is theoretically possible to select an arbitrator with some expertise relevant to the class-certification question, arbitrators are not generally knowledgeable in the often-dominant procedural aspects of certification, such as the protection of absent parties. The conclusion follows that class arbitration, to the extent it is manufactured by Discover rather than consensual, is inconsistent with the FAA. 14 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court First, the switch from bilateral to class arbitration sacrifices the principal advantage of arbitration—its in formality—and makes the process slower, more costly, and more likely to generate procedural morass than final judgment. “In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.” 559 U. S., at (slip op., at 21). But before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be certified, whether the named parties are suffi ciently representative and typical, and how discovery for the class should be conducted. A cursory comparison of bilateral and class arbitration illustrates the difference. According to the American Arbitration Association (AAA), the average consumer arbitration between January and August resulted in a disposition on the merits in six months, four months if the arbitration was conducted by documents only. AAA, Analysis of the AAA’s Con sumer Arbitration Caseload, online at http://www.adr.org/ si.asp?id=5027 (all Internet materials as visited Apr. 25, 2011, and available in Clerk of Court’s case file). As of September the AAA had opened 283 class arbitra tions. Of those, 121 remained active, and had been settled, withdrawn, or dismissed. Not a single one, how ever, had resulted in a final award on the merits. Brief for AAA as Amicus Curiae in O. T. No. 08–1198, pp. 22–. For those cases that were no longer active, the median time from filing to settlement, with drawal, or dismissal—not judgment on the merits—was 583 days, and the mean was 630 days. at7 —————— 7 The dissent claims that class arbitration should be compared to class litigation, not bilateral arbitration. Post, at 6–7. Whether arbi Cite as: 563 U. S. (2011) 15 Opinion of the Court Second, class arbitration requires procedural formality. The AAA’s rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class litigation. Com pare AAA, Supplementary Rules for Class Arbitrations (effective Oct. 8, 2003), online at http://www.adr.org/ sp.asp?id=36, with Fed. Rule Civ. Proc. 23. And while parties can alter those procedures by contract, an alterna tive is not obvious. If procedures are too informal, absent class members would not be bound by the arbitration. For a class-action money judgment to bind absentees in litiga tion, class representatives must at all times adequately represent absent class members, and absent members must be afforded notice, an opportunity to be heard, and a right to opt out of the class. Phillips Petroleum Co. v. Shutts, At least this amount of process would presumably be required for ab sent parties to be bound by the results of arbitration. We find it unlikely that in passing the FAA Congress meant to leave the disposition of these procedural re quirements to an arbitrator. Indeed, class arbitration was not even envisioned by Congress when it passed the FAA in 1925; as the California Supreme Court admitted in Discover class arbitration is a “relatively recent development.” And it is at the very least odd to think that an arbitrator would be entrusted with ensuring that third parties’ due process rights are satisfied. Third, class arbitration greatly increases risks to defen dants. Informal procedures do of course have a cost: The absence of multilayered review makes it more likely that errors will go uncorrected. Defendants are willing to accept the costs of these errors in arbitration, since their —————— trating a class is more desirable than litigating one, however, is not relevant. A State cannot defend a rule requiring arbitration-by-jury by saying that parties will still prefer it to trial-by-jury. 16 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court impact is limited to the size of individual disputes, and presumably outweighed by savings from avoiding the courts. But when damages allegedly owed to tens of thou sands of potential claimants are aggregated and decided at once, the risk of an error will often become unacceptable. Faced with even a small chance of a devastating loss, defendants will be pressured into settling questionable claims. Other courts have noted the risk of “in terrorem” settlements that class actions entail, see, e.g., Kohen v. Pacific Inv. Management Co. LLC, 7–8 and class arbitration would be no different. Arbitration is poorly suited to the higher stakes of class litigation. In litigation, a defendant may appeal a certifi cation decision on an interlocutory basis and, if unsuccess ful, may appeal from a final judgment as well. Questions of law are reviewed de novo and questions of fact for clear error. In contrast, 9 U.S. C. allows a court to vacate an arbitral award only where the award “was procured by corruption, fraud, or undue means”; “there was evident partiality or corruption in the arbitrators”; “the arbitrators were guilty of misconduct in refusing to postpone the hearing or in refusing to hear evidence pertinent and material to the controversy[,] or of any other misbehavior by which the rights of any party have been prejudiced”; or if the “arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award was not made.” The AAA rules do authorize judicial re view of certification decisions, but this review is unlikely to have much effect given these limitations; review un der focuses on misconduct rather than mistake. And parties may not contractually expand the grounds or nature of judicial review. Hall Street As, 552 U.S., at 578. We find it hard to believe that defendants would bet the company with no effective means of review, and even harder to believe that Congress would have intended to Cite as: 563 U. S. (2011) 17 Opinion of the Court allow state courts to force such a decision.8 The Concepcions contend that because parties may and sometimes do agree to aggregation, class procedures are not necessarily incompatible with arbitration. But the same could be said about procedures that the Concepcions admit States may not superimpose on arbitration: Parties could agree to arbitrate pursuant to the Federal Rules of Civil Procedure, or pursuant to a discovery process rival ing that in litigation. Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expecta tions. Rent-A-Center, West, 561 U. S., at (slip op., at 3). But what the parties in the aforementioned examples would have agreed to is not arbitration as envisioned by the FAA, lacks its benefits, and therefore may not be required by state law. The dissent claims that class proceedings are necessary to prosecute small-dollar claims that might otherwise slip through the legal system. See post, at 9. But States can not require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons. Moreover, the claim here was most unlikely to go unresolved. As noted earlier, the arbitration agreement provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney’s fees if they obtain an arbitration award greater than AT&T’s last settlement offer. The District Court —————— 8 The dissent cites three large arbitration awards (none of which stems from classwide arbitration) as evidence that parties are willing to submit large claims before an arbitrator. Post, at 7–8. Those examples might be in point if it could be established that the size of the arbitral dispute was predictable when the arbitration agreement was entered. Otherwise, all the cases prove is that arbitrators can give huge awards—which we have never doubted. The point is that in class action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a classwide basis will have a substantial deterrent effect on incen tives to arbitrate. 18 AT&T MOBILITY LLC v. CONCEPCION Opinion of the Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be “essen tially guarantee[d]” to be made n. 9. Indeed, the District Court concluded that the Concep cions were better off under their arbitration agreement with AT&T than they would have been as participants in a class action, which “could take months, if not years, and which may merely yield an opportunity to submit a claim for recovery of a small percentage of a few dollars.” Laster, * * * Because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Con gress,” Cali fornia’s Discover rule is preempted by the FAA. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 563 U. S. (2011) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–893 AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Justice Thomas

concurring

At&T Mobility LLC v. Concepcion

2011-04-27

https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/

https://www.courtlistener.com/api/rest/v3/clusters/2959735/

2010-040

Section 2 of the Federal Arbitration Act (FAA) provides that an arbitration provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2. The question here is whether California’s Discover Bank rule, see Discover Bank v. Superior Ct., 36 Cal. 4th 148, 113 P.3d 1100 (2005), is a “groun[d] . . . for the revocation of any contract.” It would be absurd to suggest that §2 requires only that a defense apply to “any contract.” If §2 means anything, it is that courts cannot refuse to enforce arbitration agree ments because of a state public policy against arbitration, even if the policy nominally applies to “any contract.” There must be some additional limit on the contract de fenses permitted by §2. Cf. ante, at 17 (opinion of the Court) (state law may not require procedures that are “not arbitration as envisioned by the FAA” and “lac[k] its bene fits”); post, at 5 (BREYER, J., dissenting) (state law may require only procedures that are “consistent with the use of arbitration”). I write separately to explain how I would find that limit in the FAA’s text. As I would read it, the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration 2 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring agreement, such as by proving fraud or duress. 9 U.S. C. §§2, 4. Under this reading, I would reverse the Court of Appeals because a district court cannot follow both the FAA and the Discover Bank rule, which does not relate to defects in the making of an agreement. This reading of the text, however, has not been fully developed by any party, cf. Brief for Petitioner 41, n. 12, and could benefit from briefing and argument in an ap propriate case. Moreover, I think that the Court’s test will often lead to the same outcome as my textual interpreta tion and that, when possible, it is important in interpret ing statutes to give lower courts guidance from a majority of the Court. See US Airways, Inc. v. Barnett, 535 U.S. 391, 411 (2002) (O’Connor, J., concurring). Therefore, although I adhere to my views on purposes-and-objectives pre-emption, see Wyeth v. Levine, 555 U.S. 555, ___ (2009) (opinion concurring in judgment), I reluctantly join the Court’s opinion. I The FAA generally requires courts to enforce arbitration agreements as written. Section 2 provides that “[a] writ ten provision in . . . a contract . . . to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Significantly, the statute does not paral lel the words “valid, irrevocable, and enforceable” by refer encing the grounds as exist for the “invalidation, revoca tion, or nonenforcement” of any contract. Nor does the statute use a different word or phrase entirely that might arguably encompass validity, revocability, and enforce ability. The use of only “revocation” and the conspicuous omission of “invalidation” and “nonenforcement” suggest that the exception does not include all defenses applicable to any contract but rather some subset of those defenses. Cite as: 563 U. S. ____ (2011) 3 THOMAS, J., concurring See Duncan v. Walker, 533 U.S. 167, 174 (2001) (“It is our duty to give effect, if possible, to every clause and word of a statute” (internal quotation marks omitted)). Concededly, the difference between revocability, on the one hand, and validity and enforceability, on the other, is not obvious. The statute does not define the terms, and their ordinary meanings arguably overlap. Indeed, this Court and others have referred to the concepts of revoca bility, validity, and enforceability interchangeably. But this ambiguity alone cannot justify ignoring Congress’ clear decision in §2 to repeat only one of the three concepts. To clarify the meaning of §2, it would be natural to look to other portions of the FAA. Statutory interpretation focuses on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). “A provision that may seem am biguous in isolation is often clarified by the remainder of the statutory scheme . . . because only one of the permissi ble meanings produces a substantive effect that is com patible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 365, 371 (1988). Examining the broader statutory scheme, §4 can be read to clarify the scope of §2’s exception to the enforcement of arbitration agreements. When a party seeks to enforce an arbitration agreement in federal court, §4 requires that “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue,” the court must order arbitration “in accordance with the terms of the agreement.” Reading §§2 and 4 harmoniously, the “grounds . . . for the revocation” preserved in §2 would mean grounds re lated to the making of the agreement. This would require enforcement of an agreement to arbitrate unless a party 4 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring successfully asserts a defense concerning the formation of the agreement to arbitrate, such as fraud, duress, or mu tual mistake. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403–404 (1967) (interpreting §4 to permit federal courts to adjudicate claims of “fraud in the inducement of the arbitration clause itself” because such claims “g[o] to the ‘making’ of the agreement to arbitrate”). Contract defenses unrelated to the making of the agree ment—such as public policy—could not be the basis for declining to enforce an arbitration clause.* —————— * The interpretation I suggest would be consistent with our prece dent. Contract formation is based on the consent of the parties, and we have emphasized that “[a]rbitration under the Act is a matter of con sent.” Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). The statement in Perry v. Thomas, 482 U.S. 483 (1987), suggesting that §2 preserves all state-law defenses that “arose to govern issues concerning the validity, revocability, and enforceability of contracts generally,” id., at 493, n. 9, is dicta. This statement is found in a footnote concerning a claim that the Court “decline[d] to address.” Id., at 392, n. 9. Similarly, to the extent that statements in Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ___, ___ n. 1 (2010) (slip op. at ___, n. 1), can be read to suggest anything about the scope of state-law defenses under §2, those statements are dicta, as well. This Court has never addressed the question whether the state-law “grounds” referred to in §2 are narrower than those applicable to any contract. Moreover, every specific contract defense that the Court has ac knowledged is applicable under §2 relates to contract formation. In Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996), this Court said that fraud, duress, and unconscionability “may be applied to invalidate arbitration agreements without contravening §2.” All three defenses historically concern the making of an agreement. See Morgan Stanley Capital Group Inc. v. Public Util. Dist. No. 1 of Snohomish Cty., 554 U.S. 527, 547 (2008) (describing fraud and duress as “traditional grounds for the abrogation of [a] contract” that speak to “unfair dealing at the contract formation stage”); Hume v. United States, 132 U.S. 406, 411, 414 (1889) (describing an unconscionable contract as one “such as no man in his senses and not under delusion would make” and suggest ing that there may be “contracts so extortionate and unconscionable on their face as to raise the presumption of fraud in their inception” (internal quotation marks omitted)). Cite as: 563 U. S. ____ (2011) 5 THOMAS, J., concurring II Under this reading, the question here would be whether California’s Discover Bank rule relates to the making of an agreement. I think it does not. In Discover Bank, 36 Cal. 4th 148, 113 P.3d 1100, the California Supreme Court held that “class action waivers are, under certain circumstances, unconscionable as unlaw fully exculpatory.” Id., at 65, 113 P. 3d, at 1112; see also id., at 161, 113 P. 3d, at 1108 (“[C]lass action waivers [may be] substantively unconscionable inasmuch as they may operate effectively as exculpatory contract clauses that are contrary to public policy”). The court concluded that where a class-action waiver is found in an arbitration agreement in certain consumer contracts of adhesion, such waivers “should not be enforced.” Id., at 163, 113 P.3d, at 1110. In practice, the court explained, such agreements “operate to insulate a party from liability that otherwise would be imposed under California law.” Id., at 161, 113 P.3d, at 1108, 1109. The court did not conclude that a customer would sign such an agreement only if under the influence of fraud, duress, or delusion. The court’s analysis and conclusion that the arbitration agreement was exculpatory reveals that the Discover Bank rule does not concern the making of the arbitration agreement. Exculpatory contracts are a paradigmatic ex ample of contracts that will not be enforced because of public policy. 15 G. Giesel, Corbin on Contracts §§85.1, 85.17, 85.18 (rev. ed. 2003). Indeed, the court explained that it would not enforce the agreements because they are “ ‘against the policy of the law.’ ” 36 Cal. 4th, at 161, 113 P.3d, at 1108 (quoting Cal. Civ. Code Ann. §1668); see also 36 Cal. 4th, at 166, 113 P. 3d, at 1112 (“Agreements to arbitrate may not be used to harbor terms, conditions and practices that undermine public policy” (internal quotation marks omitted)). Refusal to enforce a contract for public-policy reasons does not concern whether the 6 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring contract was properly made. Accordingly, the Discover Bank rule is not a “groun[d] . . . for the revocation of any contract” as I would read §2 of the FAA in light of §4. Under this reading, the FAA dic tates that the arbitration agreement here be enforced and the Discover Bank rule is pre-empted. Cite as: 563 U. S. ____ (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–893 _________________ AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Section 2 of the Federal Arbitration Act (FAA) provides that an arbitration provision “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. The question here is whether California’s Discover Bank rule, see Discover is a “groun[d] for the revocation of any contract.” It would be absurd to suggest that requires only that a defense apply to “any contract.” If means anything, it is that courts cannot refuse to enforce arbitration agree ments because of a state public policy against arbitration, even if the policy nominally applies to “any contract.” There must be some additional limit on the contract de fenses permitted by Cf. ante, at 17 (opinion of the Court) (state law may not require procedures that are “not arbitration as envisioned by the FAA” and “lac[k] its bene fits”); post, at 5 (BREYER, J., dissenting) (state law may require only procedures that are “consistent with the use of arbitration”). I write separately to explain how I would find that limit in the FAA’s text. As I would read it, the FAA requires that an agreement to arbitrate be enforced unless a party successfully challenges the formation of the arbitration 2 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring agreement, such as by proving fraud or duress. 9 U.S. C. §, 4. Under this reading, I would reverse the Court of Appeals because a district court cannot follow both the FAA and the Discover Bank rule, which does not relate to defects in the making of an agreement. This reading of the text, however, has not been fully developed by any party, cf. Brief for Petitioner 41, n. 12, and could benefit from briefing and argument in an ap propriate case. Moreover, I think that the Court’s test will often lead to the same outcome as my textual interpreta tion and that, when possible, it is important in interpret ing statutes to give lower courts guidance from a majority of the Court. See US Airways, Inc. v. Barnett, 535 U.S. 391, 411 (2002) (O’Connor, J., concurring). Therefore, although I adhere to my views on purposes-and-objectives pre-emption, see (opinion concurring in judgment), I reluctantly join the Court’s opinion. I The FAA generally requires courts to enforce arbitration agreements as written. Section 2 provides that “[a] writ ten provision in a contract to settle by arbitration a controversy thereafter arising out of such contract shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Significantly, the statute does not paral lel the words “valid, irrevocable, and enforceable” by refer encing the grounds as exist for the “invalidation, revoca tion, or nonenforcement” of any contract. Nor does the statute use a different word or phrase entirely that might arguably encompass validity, revocability, and enforce ability. The use of only “revocation” and the conspicuous omission of “invalidation” and “nonenforcement” suggest that the exception does not include all defenses applicable to any contract but rather some subset of those defenses. Cite as: 563 U. S. (2011) 3 THOMAS, J., concurring See (“It is our duty to give effect, if possible, to every clause and word of a statute” (internal quotation marks omitted)). Concededly, the difference between revocability, on the one hand, and validity and enforceability, on the other, is not obvious. The statute does not define the terms, and their ordinary meanings arguably overlap. Indeed, this Court and others have referred to the concepts of revoca bility, validity, and enforceability interchangeably. But this ambiguity alone cannot justify ignoring Congress’ clear decision in to repeat only one of the three concepts. To clarify the meaning of it would be natural to look to other portions of the FAA. Statutory interpretation focuses on “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). “A provision that may seem am biguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissi ble meanings produces a substantive effect that is com patible with the rest of the law.” United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U.S. 3, 371 (1988). Examining the broader statutory scheme, can be read to clarify the scope of ’s exception to the enforcement of arbitration agreements. When a party seeks to enforce an arbitration agreement in federal court, requires that “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue,” the court must order arbitration “in accordance with the terms of the agreement.” Reading § and 4 harmoniously, the “grounds for the revocation” preserved in would mean grounds re lated to the making of the agreement. This would require enforcement of an agreement to arbitrate unless a party 4 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring successfully asserts a defense concerning the formation of the agreement to arbitrate, such as fraud, duress, or mu tual mistake. See Prima Paint (interpreting to permit federal courts to adjudicate claims of “fraud in the inducement of the arbitration clause itself” because such claims “g[o] to the ‘making’ of the agreement to arbitrate”). Contract defenses unrelated to the making of the agree ment—such as public policy—could not be the basis for declining to enforce an arbitration clause.* —————— * The interpretation I suggest would be consistent with our prece dent. Contract formation is based on the consent of the parties, and we have emphasized that “[a]rbitration under the Act is a matter of con sent.” Volt Information Sciences, The statement in suggesting that preserves all state-law defenses that “arose to govern issues concerning the validity, revocability, and enforceability of contracts generally,” is dicta. This statement is found in a footnote concerning a claim that the Court “decline[d] to address.” at 392, n. 9. Similarly, to the extent that statements in Rent-A-Center, West, Inc. v. Jackson, 561 U. S. n. 1 (2010) (slip op. at n. 1), can be read to suggest anything about the scope of state-law defenses under those statements are dicta, as well. This Court has never addressed the question whether the state-law “grounds” referred to in are narrower than those applicable to any contract. Moreover, every specific contract defense that the Court has ac knowledged is applicable under relates to contract formation. In Doctor’s Associates, this Court said that fraud, duress, and unconscionability “may be applied to invalidate arbitration agreements without contravening ” All three defenses historically concern the making of an agreement. See Morgan Stanley Capital Group (describing fraud and duress as “traditional grounds for the abrogation of [a] contract” that speak to “unfair dealing at the contract formation stage”); 411, 414 (1889) (describing an unconscionable contract as one “such as no man in his senses and not under delusion would make” and suggest ing that there may be “contracts so extortionate and unconscionable on their face as to raise the presumption of fraud in their inception” (internal quotation marks omitted)). Cite as: 563 U. S. (2011) 5 THOMAS, J., concurring II Under this reading, the question here would be whether California’s Discover Bank rule relates to the making of an agreement. I think it does not. In Discover Bank, the California Supreme Court held that “class action waivers are, under certain circumstances, unconscionable as unlaw fully exculpatory.” ; see (“[C]lass action waivers [may be] substantively unconscionable inasmuch as they may operate effectively as exculpatory contract clauses that are contrary to public policy”). The court concluded that where a class-action waiver is found in an arbitration agreement in certain consumer contracts of adhesion, such waivers “should not be enforced.” 113 P.3d, at 1110. In practice, the court explained, such agreements “operate to insulate a party from liability that otherwise would be imposed under California law.” 113 P.3d, at 1108, 1109. The court did not conclude that a customer would sign such an agreement only if under the influence of fraud, duress, or delusion. The court’s analysis and conclusion that the arbitration agreement was exculpatory reveals that the Discover Bank rule does not concern the making of the arbitration agreement. Exculpatory contracts are a paradigmatic ex ample of contracts that will not be enforced because of public policy. 15 G. Giesel, Corbin on Contracts 85.17, 85.18 (rev. ed. 2003). Indeed, the court explained that it would not enforce the agreements because they are “ ‘against the policy of the law.’ ” 36 Cal. 4th, 113 P.3d, at 1108 (quoting Cal. Civ. Code Ann. see (“Agreements to arbitrate may not be used to harbor terms, conditions and practices that undermine public policy” (internal quotation marks omitted)). Refusal to enforce a contract for public-policy reasons does not concern whether the 6 AT&T MOBILITY LLC v. CONCEPCION THOMAS, J., concurring contract was properly made. Accordingly, the Discover Bank rule is not a “groun[d] for the revocation of any contract” as I would read of the FAA in light of Under this reading, the FAA dic tates that the arbitration agreement here be enforced and the Discover Bank rule is pre-empted. Cite as: 563 U. S. (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–893 AT&T MOBILITY LLC, PETITIONER v. VINCENT CONCEPCION ET UX.

Justice Breyer

dissenting

At&T Mobility LLC v. Concepcion

2011-04-27

https://www.courtlistener.com/opinion/2959735/att-mobility-llc-v-concepcion/

https://www.courtlistener.com/api/rest/v3/clusters/2959735/

2010-040

The Federal Arbitration Act says that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. §2 (emphasis added). California law sets forth certain circumstances in which “class action waivers” in any contract are unen­ forceable. In my view, this rule of state law is consistent with the federal Act’s language and primary objective. It does not “stan[d] as an obstacle” to the Act’s “accomplish­ ment and execution.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). And the Court is wrong to hold that the federal Act pre-empts the rule of state law. I The California law in question consists of an authorita­ tive state-court interpretation of two provisions of the California Civil Code. The first provision makes unlawful all contracts “which have for their object, directly or in­ directly, to exempt anyone from responsibility for his own . . . violation of law.” Cal. Civ. Code Ann. §1668 (West 1985). The second provision authorizes courts to “limit the application of any unconscionable clause” in a contract so “as to avoid any unconscionable result.” §1670.5(a). 2 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting The specific rule of state law in question consists of the California Supreme Court’s application of these principles to hold that “some” (but not “all”) “class action waivers” in consumer contracts are exculpatory and unconscionable under California “law.” Discover Bank v. Superior Ct., 36 Cal. 4th 148, 160, 162, 113 P.3d 1100, 1108, 1110 (2005). In particular, in Discover Bank the California Supreme Court stated that, when a class-action waiver “is found in a consumer contract of adhesion in a set­ ting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliber­ ately cheat large numbers of consumers out of indi­ vidually small sums of money, then . . . the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ ” Id., at 162–163, 113 P.3d, at 1110. In such a circumstance, the “waivers are unconscionable under California law and should not be enforced.” Id., at 163, 113 P.3d, at 1110. The Discover Bank rule does not create a “blanket policy in California against class action waivers in the consumer context.” Provencher v. Dell, Inc., 409 F. Supp. 2d 1196, 1201 (CD Cal. 2006). Instead, it represents the “appli­ cation of a more general [unconscionability] principle.” Gentry v. Superior Ct., 42 Cal. 4th 443, 457, 165 P.3d 556, 564 (2007). Courts applying California law have enforced class-action waivers where they satisfy general uncon­ scionability standards. See, e.g., Walnut Producers of Cal. v. Diamond Foods, Inc., 187 Cal. App. 4th 634, 647–650, 114 Cal. Rptr. 3d 449, 459–462 (2010); Arguelles-Romero v. Superior Ct., 184 Cal. App. 4th 825, 843–845, 109 Cal. Rptr. 3d 289, 305–307 (2010); Smith v. Americredit Finan Cite as: 563 U. S. ____ (2011) 3 BREYER, J., dissenting cial Servs., Inc., No. 09cv1076, 2009 WL 4895280 (SD Cal., Dec. 11, 2009); cf. Provencher, supra, at 1201 (considering Discover Bank in choice-of-law inquiry). And even when they fail, the parties remain free to devise other dispute mechanisms, including informal mechanisms, that, in con­ text, will not prove unconscionable. See Volt Informa tion Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989). II A The Discover Bank rule is consistent with the federal Act’s language. It “applies equally to class action litiga­ tion waivers in contracts without arbitration agreements as it does to class arbitration waivers in contracts with such agreements.” 36 Cal. 4th, at 165–166, 113 P.3d, at 1112. Linguistically speaking, it falls directly within the scope of the Act’s exception permitting courts to refuse to enforce arbitration agreements on grounds that exist “for the revocation of any contract.” 9 U.S. C. §2 (emphasis added). The majority agrees. Ante, at 9. B The Discover Bank rule is also consistent with the basic “purpose behind” the Act. Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219 (1985). We have described that purpose as one of “ensur[ing] judicial enforcement” of arbitration agreements. Ibid.; see also Marine Transit Corp. v. Dreyfus, 284 U.S. 263, 274, n. 2 (1932) (“ ‘The purpose of this bill is to make valid and enforcible agree­ ments for arbitration’ ” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924); emphasis added)); 65 Cong. Rec. 1931 (1924) (“It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in com­ mercial contracts and in admiralty contracts”). As is well known, prior to the federal Act, many courts expressed 4 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting hostility to arbitration, for example by refusing to order specific performance of agreements to arbitrate. See S. Rep. No. 536, 68th Cong., 1st Sess., 2 (1924). The Act sought to eliminate that hostility by placing agreements to arbitrate “ ‘upon the same footing as other contracts.’ ” Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974) (quoting H. R. Rep. No. 96, at 2; emphasis added). Congress was fully aware that arbitration could provide procedural and cost advantages. The House Report em­ phasized the “appropriate[ness]” of making arbitration agreements enforceable “at this time when there is so much agitation against the costliness and delays of litiga­ tion.” Id., at 2. And this Court has acknowledged that parties may enter into arbitration agreements in order to expedite the resolution of disputes. See Preston v. Ferrer, 552 U.S. 346, 357 (2008) (discussing “prime objective of an agreement to arbitrate”). See also Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). But we have also cautioned against thinking that Con­ gress’ primary objective was to guarantee these particular procedural advantages. Rather, that primary objective was to secure the “enforcement” of agreements to arbi­ trate. Dean Witter, 470 U.S., at 221. See also id., at 219 (we “reject the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims”); id., at 219, 217–218 (“[T]he intent of Congress” requires us to apply the terms of the Act without regard to whether the result would be “possibly inefficient”); cf. id., at 220 (acknowledging that “expedited resolution of disputes” might lead parties to prefer arbitration). The relevant Senate Report points to the Act’s basic purpose when it says that “[t]he purpose of the [Act] is clearly set forth in section 2,” S. Rep. No. 536, at 2 (emphasis added), namely, the section that says that an arbitration agree­ ment “shall be valid, irrevocable, and enforceable, save Cite as: 563 U. S. ____ (2011) 5 BREYER, J., dissenting upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S. C. §2. Thus, insofar as we seek to implement Congress’ intent, we should think more than twice before invalidating a state law that does just what §2 requires, namely, puts agreements to arbitrate and agreements to litigate “upon the same footing.” III The majority’s contrary view (that Discover Bank stands as an “obstacle” to the accomplishment of the federal law’s objective, ante, at 9–18) rests primarily upon its claims that the Discover Bank rule increases the complexity of arbitration procedures, thereby discouraging parties from entering into arbitration agreements, and to that extent discriminating in practice against arbitration. These claims are not well founded. For one thing, a state rule of law that would sometimes set aside as unconscionable a contract term that forbids class arbitration is not (as the majority claims) like a rule that would require “ultimate disposition by a jury” or “judicially monitored discovery” or use of “the Federal Rules of Evidence.” Ante, at 8, 9. Unlike the majority’s examples, class arbitration is consistent with the use of arbitration. It is a form of arbitration that is well known in California and followed elsewhere. See, e.g., Keating v. Superior Ct., 167 Cal. Rptr. 481, 492 (App. 1980) (officially depublished); American Arbitration Association (AAA), Supplementary Rules for Class Arbitrations (2003), http://www.adr.org/sp.asp?id=21936 (as visited Apr. 25, 2011, and available in Clerk of Court’s case file); JAMS, The Resolution Experts, Class Action Procedures (2009). Indeed, the AAA has told us that it has found class ar­ bitration to be “a fair, balanced, and efficient means of resolving class disputes.” Brief for AAA as Amicus Curiae in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., O. T. 6 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting 2009, No. 08–1198, p. 25 (hereinafter AAA Amicus Brief). And unlike the majority’s examples, the Discover Bank rule imposes equivalent limitations on litigation; hence it cannot fairly be characterized as a targeted attack on arbitration. Where does the majority get its contrary idea—that individual, rather than class, arbitration is a “fundamen­ tal attribut[e]” of arbitration? Ante, at 9. The majority does not explain. And it is unlikely to be able to trace its present view to the history of the arbitration statute itself. When Congress enacted the Act, arbitration procedures had not yet been fully developed. Insofar as Congress considered detailed forms of arbitration at all, it may well have thought that arbitration would be used primarily where merchants sought to resolve disputes of fact, not law, under the customs of their industries, where the parties possessed roughly equivalent bargaining power. See Mitsubishi Motors, supra, at 646 (Stevens, J., dissent­ ing); Joint Hearings on S. 1005 and H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 15 (1924); Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9–10 (1923); Dept. of Commerce, Secretary Hoover Favors Arbitration—Press Release (Dec. 28, 1925), Herbert Hoover Papers—Articles, Addresses, and Public Statements File—No. 536, p. 2 (Herbert Hoover Presidential Library); Cohen & Dayton, The New Federal Arbitration Law, 12 Va. L. Rev. 265, 281 (1926); AAA, Year Book on Commercial Arbitration in the United States (1927). This last mentioned feature of the history—roughly equivalent bargaining power—suggests, if anything, that California’s statute is consistent with, and indeed may help to further, the objectives that Con­ gress had in mind. Regardless, if neither the history nor present practice suggests that class arbitration is fundamentally incom­ Cite as: 563 U. S. ____ (2011) 7 BREYER, J., dissenting patible with arbitration itself, then on what basis can the majority hold California’s law pre-empted? For another thing, the majority’s argument that the Discover Bank rule will discourage arbitration rests criti­ cally upon the wrong comparison. The majority compares the complexity of class arbitration with that of bilateral arbitration. See ante, at 14. And it finds the former more complex. See ibid. But, if incentives are at issue, the relevant comparison is not “arbitration with arbitration” but a comparison between class arbitration and judicial class actions. After all, in respect to the relevant set of contracts, the Discover Bank rule similarly and equally sets aside clauses that forbid class procedures—whether arbitration procedures or ordinary judicial procedures are at issue. Why would a typical defendant (say, a business) prefer a judicial class action to class arbitration? AAA statistics “suggest that class arbitration proceedings take more time than the average commercial arbitration, but may take less time than the average class action in court.” AAA Amicus Brief 24 (emphasis added). Data from California courts confirm that class arbitrations can take considera­ bly less time than in-court proceedings in which class certification is sought. Compare ante, at 14 (providing statistics for class arbitration), with Judicial Council of California, Administrative Office of the Courts, Class Certification in California: Second Interim Report from the Study of California Class Action Litigation 18 (2010) (providing statistics for class-action litigation in California courts). And a single class proceeding is surely more efficient than thousands of separate proceedings for iden­ tical claims. Thus, if speedy resolution of disputes were all that mattered, then the Discover Bank rule would reinforce, not obstruct, that objective of the Act. The majority’s related claim that the Discover Bank rule will discourage the use of arbitration because 8 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting “[a]rbitration is poorly suited to . . . higher stakes” lacks empirical support. Ante, at 16. Indeed, the majority provides no convincing reason to believe that parties are unwilling to submit high-stake disputes to arbitration. And there are numerous counterexamples. Loftus, Rivals Resolve Dispute Over Drug, Wall Street Journal, Apr. 16, 2011, p. B2 (discussing $500 million settlement in dispute submitted to arbitration); Ziobro, Kraft Seeks Arbitration In Fight With Starbucks Over Distribution, Wall Street Journal, Nov. 30, 2010, p. B10 (describing initiation of an arbitration in which the payout “could be higher” than $1.5 billion); Markoff, Software Arbitration Ruling Gives I.B.M. $833 Million From Fujitsu, N. Y. Times, Nov. 30, 1988, p. A1 (describing both companies as “pleased with the ruling” resolving a licensing dispute). Further, even though contract defenses, e.g., duress and unconscionability, slow down the dispute resolution proc­ ess, federal arbitration law normally leaves such matters to the States. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. ___, ___ (2010) (slip op., at 4) (arbitration agreements “may be invalidated by ‘generally applicable contract defenses’ ” (quoting Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 687 (1996))). A provision in a contract of adhesion (for example, requiring a consumer to decide very quickly whether to pursue a claim) might increase the speed and efficiency of arbitrating a dispute, but the State can forbid it. See, e.g., Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 67, 2009–Ohio–2054, ¶19, 908 N.E.2d 408, 412 (“Unconscionability is a ground for revocation of an arbitration agreement”); In re Poly-America, L. P., 262 S.W.3d 337, 348 (Tex. 2008) (“Unconscionable contracts, however—whether relating to arbitration or not—are unenforceable under Texas law”). The Discover Bank rule amounts to a variation on this theme. California is free to define unconscionability as it sees fit, and its common law is of no federal concern so long as the State does not adopt Cite as: 563 U. S. ____ (2011) 9 BREYER, J., dissenting a special rule that disfavors arbitration. Cf. Doctor’s As sociates, supra, at 687. See also ante, at 4, n. (THOMAS, J., concurring) (suggesting that, under certain circumstances, California might remain free to apply its unconscionability doctrine). Because California applies the same legal principles to address the unconscionability of class arbitration waivers as it does to address the unconscionability of any other contractual provision, the merits of class proceedings should not factor into our decision. If California had applied its law of duress to void an arbitration agreement, would it matter if the procedures in the coerced agreement were efficient? Regardless, the majority highlights the disadvantages of class arbitrations, as it sees them. See ante, at 15–16 (referring to the “greatly increase[d] risks to defendants”; the “chance of a devastating loss” pressuring defendants “into settling questionable claims”). But class proceedings have countervailing advantages. In general agreements that forbid the consolidation of claims can lead small­ dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concep­ cions’ arbitration worthwhile) simply by paying the claim’s face value, such that “the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.” Laster v. AT&T Mobility LLC, 584 F.3d 849, 855, 856 (CA9 2009). What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? See, e.g., Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (CA7 2004) (“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a luna­ tic or a fanatic sues for $30”). In California’s perfectly 10 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting rational view, nonclass arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require techni­ cal legal knowledge or waiting at great length while a call is placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement’s author from liability for its own frauds by “deliberately cheat[ing] large numbers of consumers out of individually small sums of money.” 36 Cal. 4th, at 162–163, 113 P.3d, at 1110. Why is this kind of deci­ sion—weighing the pros and cons of all class proceedings alike—not California’s to make? Finally, the majority can find no meaningful support for its views in this Court’s precedent. The federal Act has been in force for nearly a century. We have decided doz­ ens of cases about its requirements. We have reached results that authorize complex arbitration procedures. E.g., Mitsubishi Motors, 473 U.S., at 629 (antitrust claims arising in international transaction are arbitrable). We have upheld nondiscriminatory state laws that slow down arbitration proceedings. E.g., Volt Information Sciences, 489 U.S., at 477–479 (California law staying arbitration proceedings until completion of related litigation is not pre-empted). But we have not, to my knowledge, applied the Act to strike down a state statute that treats arbitra­ tions on par with judicial and administrative proceedings. Cf. Preston, 552 U.S., at 355–356 (Act pre-empts state law that vests primary jurisdiction in state administrative board). At the same time, we have repeatedly referred to the Act’s basic objective as assuring that courts treat arbitra­ tion agreements “like all other contracts.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 447 (2006). See also, e.g., Vaden v. Discover Bank, 556 U. S. ___, ___ Cite as: 563 U. S. ____ (2011) 11 BREYER, J., dissenting (2009); (slip op., at 13); Doctor’s Associates, supra, at 687; Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 281 (1995); Rodriguez de Quijas v. Shearson/American Ex press, Inc., 490 U.S. 477, 483–484 (1989); Perry v. Tho mas, 482 U.S. 483, 492–493, n. 9 (1987); Mitsubishi Motors, supra, at 627. And we have recognized that “[t]o immunize an arbitration agreement from judicial chal­ lenge” on grounds applicable to all other contracts “would be to elevate it over other forms of contract.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404, n. 12 (1967); see also Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 299, 169 N.E. 386, 391 (1929) (Car­ dozo, C. J.) (“Courts are not at liberty to shirk the process of [contractual] construction under the empire of a belief that arbitration is beneficent any more than they may shirk it if their belief happens to be the contrary”); Cohen & Dayton, 12 Va. L. Rev., at 276 (the Act “is no infringe­ ment upon the right of each State to decide for itself what contracts shall or shall not exist under its laws”). These cases do not concern the merits and demerits of class actions; they concern equal treatment of arbitration contracts and other contracts. Since it is the latter ques­ tion that is at issue here, I am not surprised that the majority can find no meaningful precedent supporting its decision. IV By using the words “save upon such grounds as exist at law or in equity for the revocation of any contract,” Con­ gress retained for the States an important role incident to agreements to arbitrate. 9 U.S. C. §2. Through those words Congress reiterated a basic federal idea that has long informed the nature of this Nation’s laws. We have often expressed this idea in opinions that set forth pre­ sumptions. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (“[B]ecause the States are independent 12 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action”). But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach. With respect, I dissent

The Federal Arbitration Act says that an arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S. C. (emphasis added). California law sets forth certain circumstances in which “class action waivers” in any contract are unen­ forceable. In my view, this rule of state law is consistent with the federal Act’s language and primary objective. It does not “stan[d] as an obstacle” to the Act’s “accomplish­ ment and execution.” 67 (1941). And the Court is wrong to hold that the federal Act pre-empts the rule of state law. I The California law in question consists of an authorita­ tive state-court interpretation of two provisions of the California Civil Code. The first provision makes unlawful all contracts “which have for their object, directly or in­ directly, to exempt anyone from responsibility for his own violation of law.” Cal. Civ. Code Ann. The second provision authorizes courts to “limit the application of any unconscionable clause” in a contract so “as to avoid any unconscionable result.” 2 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting The specific rule of state law in question consists of the California Supreme Court’s application of these principles to hold that “some” (but not “all”) “class action waivers” in consumer contracts are exculpatory and unconscionable under California “law.” Discover In particular, in Discover Bank the California Supreme Court stated that, when a class-action waiver “is found in a consumer contract of adhesion in a set­ ting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliber­ ately cheat large numbers of consumers out of indi­ vidually small sums of money, then the waiver becomes in practice the exemption of the party ‘from responsibility for [its] own fraud, or willful injury to the person or property of another.’ ” at 162–, In such a circumstance, the “waivers are unconscionable under California law and should not be enforced.” at The Discover Bank rule does not create a “blanket policy in California against class action waivers in the consumer context.” 1201 Instead, it represents the “appli­ cation of a more general [unconscionability] principle.” 564 (2007). Courts applying California law have enforced class-action waivers where they satisfy general uncon­ scionability standards. See, e.g., Walnut Producers of Cal. v. Diamond Foods, Inc., 647–650, ; Arguelles-Romero v. Superior Ct., 843–845, 109 Cal. Rptr. 3d 289, 305–307 ; Smith v. Americredit Finan Cite as: 563 U. S. (2011) 3 BREYER, J., dissenting cial Servs., Inc., No. 09cv1076, (SD Cal., Dec. 11, 2009); cf. (considering Discover Bank in choice-of-law inquiry). And even when they fail, the parties remain free to devise other dispute mechanisms, including informal mechanisms, that, in con­ text, will not prove unconscionable. See Volt Informa tion Sciences, II A The Discover Bank rule is consistent with the federal Act’s language. It “applies equally to class action litiga­ tion waivers in contracts without arbitration agreements as it does to class arbitration waivers in contracts with such agreements.” –166, 113 P.3d, at 1112. Linguistically speaking, it falls directly within the scope of the Act’s exception permitting courts to refuse to enforce arbitration agreements on grounds that exist “for the revocation of any contract.” 9 U.S. C. (emphasis added). The majority agrees. Ante, at 9. B The Discover Bank rule is also consistent with the basic “purpose behind” the Act. Dean Reynolds Inc. v. Byrd, We have described that purpose as one of “ensur[ing] judicial enforcement” of arbitration agreements. Ibid.; see also Marine Transit (“ ‘The purpose of this bill is to make valid and enforcible agree­ ments for arbitration’ ” (quoting H. R. Rep. No. 96, 68th Cong., 1st Sess., 1 (1924); emphasis added)); 65 Cong. Rec. 1931 (1924) (“It creates no new legislation, grants no new rights, except a remedy to enforce an agreement in com­ mercial contracts and in admiralty contracts”). As is well known, prior to the federal Act, many courts expressed 4 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting hostility to arbitration, for example by refusing to order specific performance of agreements to arbitrate. See S. Rep. No. 536, 68th Cong., 1st Sess., 2 (1924). The Act sought to eliminate that hostility by placing agreements to arbitrate “ ‘upon the same footing as other contracts.’ ” (quoting H. R. Rep. No. 96, ; emphasis added). Congress was fully aware that arbitration could provide procedural and cost advantages. The House Report em­ phasized the “appropriate[ness]” of making arbitration agreements enforceable “at this time when there is so much agitation against the costliness and delays of litiga­ tion.” And this Court has acknowledged that parties may enter into arbitration agreements in order to expedite the resolution of disputes. See (discussing “prime objective of an agreement to arbitrate”). See also Mitsubishi But we have also cautioned against thinking that Con­ gress’ primary objective was to guarantee these particular procedural advantages. Rather, that primary objective was to secure the “enforcement” of agreements to arbi­ trate. Dean 470 U.S., 21. See also at (we “reject the suggestion that the overriding goal of the Arbitration Act was to promote the expeditious resolution of claims”); at 217–218 (“[T]he intent of Congress” requires us to apply the terms of the Act without regard to whether the result would be “possibly inefficient”); cf. 20 (acknowledging that “expedited resolution of disputes” might lead parties to prefer arbitration). The relevant Senate Report points to the Act’s basic purpose when it says that “[t]he purpose of the [Act] is clearly set forth in section 2,” S. Rep. No. 536, (emphasis added), namely, the section that says that an arbitration agree­ ment “shall be valid, irrevocable, and enforceable, save Cite as: 563 U. S. (2011) 5 BREYER, J., dissenting upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S. C. Thus, insofar as we seek to implement Congress’ intent, we should think more than twice before invalidating a state law that does just what requires, namely, puts agreements to arbitrate and agreements to litigate “upon the same footing.” III The majority’s contrary view (that Discover Bank stands as an “obstacle” to the accomplishment of the federal law’s objective, ante, at 9–18) rests primarily upon its claims that the Discover Bank rule increases the complexity of arbitration procedures, thereby discouraging parties from entering into arbitration agreements, and to that extent discriminating in practice against arbitration. These claims are not well founded. For one thing, a state rule of law that would sometimes set aside as unconscionable a contract term that forbids class arbitration is not (as the majority claims) like a rule that would require “ultimate disposition by a jury” or “judicially monitored discovery” or use of “the Federal Rules of Evidence.” Ante, at 8, 9. Unlike the majority’s examples, class arbitration is consistent with the use of arbitration. It is a form of arbitration that is well known in California and followed elsewhere. See, e.g., Keating v. Superior Ct., (officially depublished); American Arbitration Association (AAA), Supplementary Rules for Class Arbitrations (2003), http://www.adr.org/sp.asp?id=36 (as visited Apr. 25, 2011, and available in Clerk of Court’s case file); JAMS, The Resolution Experts, Class Action Procedures (2009). Indeed, the AAA has told us that it has found class ar­ bitration to be “a fair, balanced, and efficient means of resolving class disputes.” Brief for AAA as Amicus Curiae in Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., O. T. 6 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting 2009, No. 08–1198, p. 25 (hereinafter AAA Amicus Brief). And unlike the majority’s examples, the Discover Bank rule imposes equivalent limitations on litigation; hence it cannot fairly be characterized as a targeted attack on arbitration. Where does the majority get its contrary idea—that individual, rather than class, arbitration is a “fundamen­ tal attribut[e]” of arbitration? Ante, at 9. The majority does not explain. And it is unlikely to be able to trace its present view to the history of the arbitration statute itself. When Congress enacted the Act, arbitration procedures had not yet been fully developed. Insofar as Congress considered detailed forms of arbitration at all, it may well have thought that arbitration would be used primarily where merchants sought to resolve disputes of fact, not law, under the customs of their industries, where the parties possessed roughly equivalent bargaining power. See Mitsubishi (Stevens, J., dissent­ ing); Joint Hearings on S. 1005 and H. R. 646 before the Subcommittees of the Committees on the Judiciary, 68th Cong., 1st Sess., 15 (1924); Hearing on S. 4213 and S. 4214 before a Subcommittee of the Senate Committee on the Judiciary, 67th Cong., 4th Sess., 9–10 (1923); Dept. of Commerce, Secretary Hoover Favors Arbitration—Press Release (Dec. 28, 1925), Herbert Hoover Papers—Articles, Addresses, and Public Statements File—No. 536, p. 2 (Herbert Hoover Presidential Library); Cohen & The New Federal Arbitration Law, (1926); AAA, Year Book on Commercial Arbitration in the United States (1927). This last mentioned feature of the history—roughly equivalent bargaining power—suggests, if anything, that California’s statute is consistent with, and indeed may help to further, the objectives that Con­ gress had in mind. Regardless, if neither the history nor present practice suggests that class arbitration is fundamentally incom­ Cite as: 563 U. S. (2011) 7 BREYER, J., dissenting patible with arbitration itself, then on what basis can the majority hold California’s law pre-empted? For another thing, the majority’s argument that the Discover Bank rule will discourage arbitration rests criti­ cally upon the wrong comparison. The majority compares the complexity of class arbitration with that of bilateral arbitration. See ante, at 14. And it finds the former more complex. See But, if incentives are at issue, the relevant comparison is not “arbitration with arbitration” but a comparison between class arbitration and judicial class actions. After all, in respect to the relevant set of contracts, the Discover Bank rule similarly and equally sets aside clauses that forbid class procedures—whether arbitration procedures or ordinary judicial procedures are at issue. Why would a typical defendant (say, a business) prefer a judicial class action to class arbitration? AAA statistics “suggest that class arbitration proceedings take more time than the average commercial arbitration, but may take less time than the average class action in court.” AAA Amicus Brief 24 (emphasis added). Data from California courts confirm that class arbitrations can take considera­ bly less time than in-court proceedings in which class certification is sought. Compare ante, at 14 (providing statistics for class arbitration), with Judicial Council of California, Administrative Office of the Courts, Class Certification in California: Second Interim Report from the Study of California Class Action Litigation 18 (providing statistics for class-action litigation in California courts). And a single class proceeding is surely more efficient than thousands of separate proceedings for iden­ tical claims. Thus, if speedy resolution of disputes were all that mattered, then the Discover Bank rule would reinforce, not obstruct, that objective of the Act. The majority’s related claim that the Discover Bank rule will discourage the use of arbitration because 8 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting “[a]rbitration is poorly suited to higher stakes” lacks empirical support. Ante, at 16. Indeed, the majority provides no convincing reason to believe that parties are unwilling to submit high-stake disputes to arbitration. And there are numerous counterexamples. Loftus, Rivals Resolve Dispute Over Drug, Wall Street Journal, Apr. 16, 2011, p. B2 (discussing $500 million settlement in dispute submitted to arbitration); Ziobro, Kraft Seeks Arbitration In Fight With Starbucks Over Distribution, Wall Street Journal, Nov. 30, p. B10 (describing initiation of an arbitration in which the payout “could be higher” than $1.5 billion); Markoff, Software Arbitration Ruling Gives I.B.M. $833 Million From Fujitsu, N. Y. Times, Nov. 30, 1988, p. A1 (describing both companies as “pleased with the ruling” resolving a licensing dispute). Further, even though contract defenses, e.g., duress and unconscionability, slow down the dispute resolution proc­ ess, federal arbitration law normally leaves such matters to the States. Rent-A-Center, West, Inc. v. Jackson, 561 U. S. (slip op., at 4) )). A provision in a contract of adhesion (for example, requiring a consumer to decide very quickly whether to pursue a claim) might increase the speed and efficiency of arbitrating a dispute, but the State can forbid it. See, e.g., Hayes v. Oakridge Home, 122 Ohio St. 3d 63, 67, 2009–Ohio–2054, ¶19, 908 N.E.2d 408, 412 (“Unconscionability is a ground for revocation of an arbitration agreement”); In re Poly-America, L. P., 262 S.W.3d 337, 348 (“Unconscionable contracts, however—whether relating to arbitration or not—are unenforceable under Texas law”). The Discover Bank rule amounts to a variation on this theme. California is free to define unconscionability as it sees fit, and its common law is of no federal concern so long as the State does not adopt Cite as: 563 U. S. (2011) 9 BREYER, J., dissenting a special rule that disfavors arbitration. Cf. Doctor’s As at See also ante, at 4, n. (THOMAS, J., concurring) (suggesting that, under certain circumstances, California might remain free to apply its unconscionability doctrine). Because California applies the same legal principles to address the unconscionability of class arbitration waivers as it does to address the unconscionability of any other contractual provision, the merits of class proceedings should not factor into our decision. If California had applied its law of duress to void an arbitration agreement, would it matter if the procedures in the coerced agreement were efficient? Regardless, the majority highlights the disadvantages of class arbitrations, as it sees them. See ante, at 15–16 (referring to the “greatly increase[d] risks to defendants”; the “chance of a devastating loss” pressuring defendants “into settling questionable claims”). But class proceedings have countervailing advantages. In general agreements that forbid the consolidation of claims can lead small­ dollar claimants to abandon their claims rather than to litigate. I suspect that it is true even here, for as the Court of Appeals recognized, AT&T can avoid the $7,500 payout (the payout that supposedly makes the Concep­ cions’ arbitration worthwhile) simply by paying the claim’s face value, such that “the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22.” 855, 856 (CA9 2009). What rational lawyer would have signed on to represent the Concepcions in litigation for the possibility of fees stemming from a $30.22 claim? See, e.g., Carnegie v. Household Int’l, Inc., (“The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a luna­ tic or a fanatic sues for $30”). In California’s perfectly 10 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting rational view, nonclass arbitration over such sums will also sometimes have the effect of depriving claimants of their claims (say, for example, where claiming the $30.22 were to involve filling out many forms that require techni­ cal legal knowledge or waiting at great length while a call is placed on hold). Discover Bank sets forth circumstances in which the California courts believe that the terms of consumer contracts can be manipulated to insulate an agreement’s author from liability for its own frauds by “deliberately cheat[ing] large numbers of consumers out of individually small sums of money.” 36 Cal. 4th, at 162–, Why is this kind of deci­ sion—weighing the pros and cons of all class proceedings alike—not California’s to make? Finally, the majority can find no meaningful support for its views in this Court’s precedent. The federal Act has been in force for nearly a century. We have decided doz­ ens of cases about its requirements. We have reached results that authorize complex arbitration procedures. E.g., Mitsubishi (antitrust claims arising in international transaction are arbitrable). We have upheld nondiscriminatory state laws that slow down arbitration proceedings. E.g., Volt Information Sciences, – (California law staying arbitration proceedings until completion of related litigation is not pre-empted). But we have not, to my knowledge, applied the Act to strike down a state statute that treats arbitra­ tions on par with judicial and administrative proceedings. Cf. –356 (Act pre-empts state law that vests primary jurisdiction in state administrative board). At the same time, we have repeatedly referred to the Act’s basic objective as assuring that courts treat arbitra­ tion agreements “like all other contracts.” Buckeye Check Cashing, See also, e.g., Vaden v. Discover Bank, 556 U. S. Cite as: 563 U. S. (2011) 11 BREYER, J., dissenting (2009); (slip op., at 13); Doctor’s As, at ; Allied-Bruce Terminix (1995); Rodriguez de ; –493, n. 9 ; Mitsubishi And we have recognized that “[t]o immunize an arbitration agreement from judicial chal­ lenge” on grounds applicable to all other contracts “would be to elevate it over other forms of contract.” Prima Paint n. 12 (1967); see also (Car­ dozo, C. J.) (“Courts are not at liberty to shirk the process of [contractual] construction under the empire of a belief that arbitration is beneficent any more than they may shirk it if their belief happens to be the contrary”); Cohen & 12 Va. L. Rev., 76 (the Act “is no infringe­ ment upon the right of each State to decide for itself what contracts shall or shall not exist under its laws”). These cases do not concern the merits and demerits of class actions; they concern equal treatment of arbitration contracts and other contracts. Since it is the latter ques­ tion that is at issue here, I am not surprised that the majority can find no meaningful precedent supporting its decision. IV By using the words “save upon such grounds as exist at law or in equity for the revocation of any contract,” Con­ gress retained for the States an important role incident to agreements to arbitrate. 9 U.S. C. Through those words Congress reiterated a basic federal idea that has long informed the nature of this Nation’s laws. We have often expressed this idea in opinions that set forth pre­ sumptions. See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (“[B]ecause the States are independent 12 AT&T MOBILITY LLC v. CONCEPCION BREYER, J., dissenting sovereigns in our federal system, we have long presumed that Congress does not cavalierly pre-empt state-law causes of action”). But federalism is as much a question of deeds as words. It often takes the form of a concrete decision by this Court that respects the legitimacy of a State’s action in an individual case. Here, recognition of that federalist ideal, embodied in specific language in this particular statute, should lead us to uphold California’s law, not to strike it down. We do not honor federalist principles in their breach. With respect, I dissent

Justice Kagan

majority

Florida v. Harris

2013-02-19

https://www.courtlistener.com/opinion/820744/florida-v-harris/

https://www.courtlistener.com/api/rest/v3/clusters/820744/

2012-015

In this case, we consider how a court should determine if the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s relia- bility. See 71 So. 3d 756, 775 (2011). We think that de- mand inconsistent with the “flexible, common-sense standard” of probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983). I William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff ’s Office. On June 24, 2006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Wheetley pulled over re- spondent Clayton Harris’s truck because it had an expired license plate. On approaching the driver’s-side door, Wheetley saw that Harris was “visibly nervous,” unable to sit still, shaking, and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder. App. 2 FLORIDA v. HARRIS Opinion of the Court 62. Wheetley asked Harris for consent to search the truck, but Harris refused. At that point, Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a “free air sniff.” Id., at 63. Aldo alerted at the driver’s-side door handle—signaling, through a distinctive set of behaviors, that he smelled drugs there. Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to de- tect. But it did reveal 200 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two contain- ers of antifreeze, and a coffee filter full of iodine crystals— all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely “cooked” metham- phetamine at his house and could not go “more than a few days without using” it. Id., at 68. The State charged Harris with possessing pseudoephedrine for use in manu- facturing methamphetamine. While out on bail, Harris had another run-in with Wheetley and Aldo. This time, Wheetley pulled Harris over for a broken brake light. Aldo again sniffed the truck’s exterior, and again alerted at the driver’s-side door handle. Wheetley once more searched the truck, but on this occasion discovered nothing of interest. Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not given Wheet- ley probable cause for a search. At the hearing on that motion, Wheetley testified about both his and Aldo’s train- ing in drug detection. See id., at 52–82. In 2004, Wheet- ley (and a different dog) completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department, while Aldo (and a different handler) completed a similar, 120-hour course given by the Apopka, Florida Police Department. That same year, Aldo received a one- year certification from Drug Beat, a private company that Cite as: 568 U. S. ____ (2013) 3 Opinion of the Court specializes in testing and certifying K–9 dogs. Wheetley and Aldo teamed up in 2005 and went through another, 40-hour refresher course in Dothan together. They also did four hours of training exercises each week to maintain their skills. Wheetley would hide drugs in certain ve- hicles or buildings while leaving others “blank” to deter- mine whether Aldo alerted at the right places. Id., at 57. According to Wheetley, Aldo’s performance in those exer- cises was “really good.” Id., at 60. The State introduced “Monthly Canine Detection Training Logs” consistent with that testimony: They showed that Aldo always found hidden drugs and that he performed “satisfactorily” (the higher of two possible assessments) on each day of train- ing. Id., at 109–116. On cross-examination, Harris’s attorney chose not to contest the quality of Aldo’s or Wheetley’s training. She focused instead on Aldo’s certification and his performance in the field, particularly the two stops of Harris’s truck. Wheetley conceded that the certification (which, he noted, Florida law did not require) had expired the year before he pulled Harris over. See id., at 70–71. Wheetley also acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other field work; instead, he maintained records only of alerts resulting in arrests. See id., at 71–72, 74. But Wheetley defended Aldo’s two alerts to Harris’s seemingly narcotics-free truck: According to Wheetley, Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that “residual odor.” Id., at 80. The trial court concluded that Wheetley had probable cause to search Harris’s truck and so denied the motion to suppress. Harris then entered a no-contest plea while reserving the right to appeal the trial court’s ruling. An intermediate state court summarily affirmed. See 989 So. 2d 1214, 1215 (2008) (per curiam). The Florida Supreme Court reversed, holding that 4 FLORIDA v. HARRIS Opinion of the Court Wheetley lacked probable cause to search Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” 71 So. 3d, at 767. To demonstrate a dog’s reliability, the State needed to produce a wider array of evidence: “[T]he State must present . . . the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field perfor- mance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliabil- ity.” Id., at 775. The court particularly stressed the need for “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.” Id., at 769. That data, the court stated, could help to expose such problems as a handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish between resid- ual odors and actual drugs.” Id., at 769, 774. Accordingly, an officer like Wheetley who did not keep full records of his dog’s field performance could never have the requisite cause to think “that the dog is a reliable indicator of drugs.” Id., at 773. Judge Canady dissented, maintaining that the major- ity’s “elaborate and inflexible evidentiary requirements” went beyond the demands of probable cause. Id., at 775. He would have affirmed the trial court’s ruling on the strength of Aldo’s training history and Harris’s “fail[ure] to present any evidence challenging” it. Id., at 776. We granted certiorari, 566 U. S. ___ (2012), and now reverse. Cite as: 568 U. S. ____ (2013) 5 Opinion of the Court II A police officer has probable cause to conduct a search when “the facts available to [him] would ‘warrant a [per- son] of reasonable caution in the belief ’” that contraband or evidence of a crime is present. Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)); see Safford Unified School Dist. #1 v. Redding, 557 U.S. 364, 370– 371 (2009). The test for probable cause is not reducible to “precise definition or quantification.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the [probable-cause] decision.” Gates, 462 U. S., at 235. All we have required is the kind of “fair probability” on which “reasonable and prudent [people,] not legal technicians, act.” Id., at 238, 231 (internal quotation marks omitted). In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Prin- gle, 540 U. S., at 371; Gates, 462 U. S., at 232; Brinegar v. United States, 338 U.S. 160, 176 (1949). We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In Gates, for example, we abandoned our old test for as- sessing the reliability of informants’ tips because it had devolved into a “complex superstructure of evidentiary and analytical rules,” any one of which, if not complied with, would derail a finding of probable cause. 462 U. S., at 235. We lamented the development of a list of “inflexi- ble, independent requirements applicable in every case.” Id., at 230, n. 6. Probable cause, we emphasized, is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even use- fully, reduced to a neat set of legal rules.” Id., at 232. The Florida Supreme Court flouted this established 6 FLORIDA v. HARRIS Opinion of the Court approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off.1 Most prominently, an alert cannot estab- lish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis. It is, indeed, the very thing we criticized in Gates when we overhauled our method for assessing the trustworthiness of an informant’s tip. A gap as to any one matter, we explained, should not sink the State’s case; rather, that “deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability.” Id., at 233. So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent eviden- tiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause. Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evi- —————— 1 Bythe time of oral argument in this case, even Harris declined to defend the idea that the Fourth Amendment compels the State to produce each item of evidence the Florida Supreme Court enumerated. See Tr. of Oral Arg. 29–30 (“I don’t believe the Constitution requires [that list]”). Harris instead argued that the court’s decision, although “look[ing] rather didactic,” in fact did not impose any such requirement. Id., at 29; see id., at 31 (“[I]t’s not a specific recipe that can’t be de- viated from”). But in reading the decision below as establishing a man- datory checklist, we do no more than take the court at its (oft-repeated) word. See, e.g., 71 So. 3d 756, 758, 759, 771, 775 (Fla. 2011) (holding that the State “must” present the itemized evidence). Cite as: 568 U. S. ____ (2013) 7 Opinion of the Court dence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mis- take usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcot- ics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs pre- viously in the vehicle or on the driver’s person.2 Field data thus may markedly overstate a dog’s real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard train- ing and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he —————— 2 See U. S. Dept. of Army, Military Working Dog Program 30 (Pam- phlet 190–12, 1993) (“The odor of a substance may be present in enough concentration to cause the dog to respond even after the substance has been removed. Therefore, when a detector dog responds and no drug or explosive is found, do not assume the dog has made an error”); S. Bryson, Police Dog Tactics 257 (2d ed. 2000) (“Four skiers toke up in the parking lot before going up the mountain. Five minutes later a narcotic detector dog alerts to the car. There is no dope inside. How- ever, the dog has performed correctly”). The Florida Supreme Court treated a dog’s response to residual odor as an error, referring to the “inability to distinguish between [such] odors and actual drugs” as a “facto[r] that call[s] into question Aldo’s reliability.” 71 So. 3d, at 773– 774; see supra, at 4. But that statement reflects a misunderstanding. A detection dog recognizes an odor, not a drug, and should alert when- ever the scent is present, even if the substance is gone (just as a police officer’s much inferior nose detects the odor of marijuana for some time after a joint has been smoked). In the usual case, the mere chance that the substance might no longer be at the location does not matter; a well-trained dog’s alert establishes a fair probability—all that is re- quired for probable cause—that either drugs or evidence of a drug crime (like the precursor chemicals in Harris’s truck) will be found. 8 FLORIDA v. HARRIS Opinion of the Court should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.3 For that reason, evidence of a dog’s satisfactory perfor- mance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforce- ment units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources. A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may some- times be relevant, as the Solicitor General acknowledged —————— 3 See K. Furton, J. Greb, & H. Holness, Florida Int’l Univ., The Scien- tific Working Group on Dog and Orthogonal Detector Guidelines 1, 61– 62, 66 (2010) (recommending as a “best practice” that a dog’s reliability should be assessed based on “the results of certification and proficiency assessments,” because in those “procedure[s] you should know whether you have a false positive,” unlike in “most operational situations”). Cite as: 568 U. S. ____ (2013) 9 Opinion of the Court at oral argument. See Tr. of Oral Arg. 23–24 (“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (con- sciously or not), or if the team was working under un- familiar conditions. In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, con- sistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defend- ant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reason- ably prudent person think that a search would reveal con- traband or evidence of a crime. A sniff is up to snuff when it meets that test. III And here, Aldo’s did. The record in this case amply supported the trial court’s determination that Aldo’s alert gave Wheetley probable cause to search Harris’s truck. The State, as earlier described, introduced substantial 10 FLORIDA v. HARRIS Opinion of the Court evidence of Aldo’s training and his proficiency in finding drugs. See supra, at 2–3. The State showed that two years before alerting to Harris’s truck, Aldo had success- fully completed a 120-hour program in narcotics detection, and separately obtained a certification from an independ- ent company. And although the certification expired after a year, the Sheriff ’s Office required continuing training for Aldo and Wheetley. The two satisfied the require- ments of another, 40-hour training program one year prior to the search at issue. And Wheetley worked with Aldo for four hours each week on exercises designed to keep their skills sharp. Wheetley testified, and written records confirmed, that in those settings Aldo always performed at the highest level. Harris, as also noted above, declined to challenge in the trial court any aspect of Aldo’s training. See supra, at 3. To be sure, Harris’s briefs in this Court raise questions about that training’s adequacy—for example, whether the programs simulated sufficiently diverse environments and whether they used enough blind testing (in which the handler does not know the location of drugs and so cannot cue the dog). See Brief for Respondent 57–58. Similarly, Harris here queries just how well Aldo performed in con- trolled testing. See id., at 58. But Harris never voiced those doubts in the trial court, and cannot do so for the first time here. See, e.g., Rugendorf v. United States, 376 U.S. 528, 534 (1964). As the case came to the trial court, Aldo had successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises. Viewed alone, that training record— with or without the prior certification—sufficed to estab- lish Aldo’s reliability. See supra, at 8–9. And Harris’s cross-examination of Wheetley, which focused on Aldo’s field performance, failed to rebut the State’s case. Harris principally contended in the trial court that because Wheetley did not find any of the sub- Cite as: 568 U. S. ____ (2013) 11 Opinion of the Court stances Aldo was trained to detect, Aldo’s two alerts must have been false. See Brief for Respondent 1; App. 77–80. But we have already described the hazards of inferring too much from the failure of a dog’s alert to lead to drugs, see supra, at 7; and here we doubt that Harris’s logic does justice to Aldo’s skills. Harris cooked and used metham- phetamine on a regular basis; so as Wheetley later sur- mised, Aldo likely responded to odors that Harris had transferred to the driver’s-side door handle of his truck. See supra, at 3. A well-trained drug-detection dog should alert to such odors; his response to them might appear a mistake, but in fact is not. See n. 2, supra. And still more fundamentally, we do not evaluate probable cause in hindsight, based on what a search does or does not turn up. See United States v. Di Re, 332 U.S. 581, 595 (1948). For the reasons already stated, Wheetley had good cause to view Aldo as a reliable detector of drugs. And no special circumstance here gave Wheetley reason to discount Aldo’s usual dependability or distrust his response to Harris’s truck. Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that show- ing, we agree with the trial court that Wheetley had prob- able cause to search Harris’s truck. We accordingly reverse the judgment of the Florida Supreme Court. It is so ordered

In this case, we consider how a court should determine if the “alert” of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s relia- bility. See We think that de- mand inconsistent with the “flexible, common-sense standard” of probable cause. Illinois v. 46 U.S. 13, 39 (1983). I William Wheetley is a K–9 Officer in the Liberty County, Florida Sheriff ’s Office. On June 4, 006, he was on a routine patrol with Aldo, a German shepherd trained to detect certain narcotics (methamphetamine, marijuana, cocaine, heroin, and ecstasy). Wheetley pulled over re- spondent Clayton Harris’s truck because it had an expired license plate. On approaching the driver’s-side door, Wheetley saw that Harris was “visibly nervous,” unable to sit still, shaking, and breathing rapidly. Wheetley also noticed an open can of beer in the truck’s cup holder. App. FLORIDA v. HARRIS Opinion of the Court 6. Wheetley asked Harris for consent to search the truck, but Harris refused. At that point, Wheetley retrieved Aldo from the patrol car and walked him around Harris’s truck for a “free air sniff.” Aldo alerted at the driver’s-side door handle—signaling, through a distinctive set of behaviors, that he smelled drugs there. Wheetley concluded, based principally on Aldo’s alert, that he had probable cause to search the truck. His search did not turn up any of the drugs Aldo was trained to de- tect. But it did reveal 00 loose pseudoephedrine pills, 8,000 matches, a bottle of hydrochloric acid, two contain- ers of antifreeze, and a coffee filter full of iodine crystals— all ingredients for making methamphetamine. Wheetley accordingly arrested Harris, who admitted after proper Miranda warnings that he routinely “cooked” metham- phetamine at his house and could not go “more than a few days without using” it. The State charged Harris with possessing pseudoephedrine for use in manu- facturing methamphetamine. While out on bail, Harris had another run-in with Wheetley and Aldo. This time, Wheetley pulled Harris over for a broken brake light. Aldo again sniffed the truck’s exterior, and again alerted at the driver’s-side door handle. Wheetley once more searched the truck, but on this occasion discovered nothing of interest. Harris moved to suppress the evidence found in his truck on the ground that Aldo’s alert had not given Wheet- ley probable cause for a search. At the hearing on that motion, Wheetley testified about both his and Aldo’s train- ing in drug detection. See at 5–8. In 004, Wheet- ley (and a different dog) completed a 160-hour course in narcotics detection offered by the Dothan, Alabama Police Department, while Aldo (and a different handler) completed a similar, 10-hour course given by the Apopka, Florida Police Department. That same year, Aldo received a one- year certification from Drug Beat, a private company that Cite as: 568 U. S. (013) 3 Opinion of the Court specializes in testing and certifying K–9 dogs. Wheetley and Aldo teamed up in 005 and went through another, 40-hour refresher course in Dothan together. They also did four hours of training exercises each week to maintain their skills. Wheetley would hide drugs in certain ve- hicles or buildings while leaving others “blank” to deter- mine whether Aldo alerted at the right places. According to Wheetley, Aldo’s performance in those exer- cises was “really good.” The State introduced “Monthly Canine Detection Training Logs” consistent with that testimony: They showed that Aldo always found hidden drugs and that he performed “satisfactorily” (the higher of two possible assessments) on each day of train- ing. at 109–116. On cross-examination, Harris’s attorney chose not to contest the quality of Aldo’s or Wheetley’s training. She focused instead on Aldo’s certification and his performance in the field, particularly the two stops of Harris’s truck. Wheetley conceded that the certification (which, he noted, Florida law did not require) had expired the year before he pulled Harris over. See 0–71. Wheetley also acknowledged that he did not keep complete records of Aldo’s performance in traffic stops or other field work; instead, he maintained records only of alerts resulting in arrests. See 1–7, 74. But Wheetley defended Aldo’s two alerts to Harris’s seemingly narcotics-free truck: According to Wheetley, Harris probably transferred the odor of methamphetamine to the door handle, and Aldo responded to that “residual odor.” The trial court concluded that Wheetley had probable cause to search Harris’s truck and so denied the motion to suppress. Harris then entered a no-contest plea while reserving the right to appeal the trial court’s ruling. An intermediate state court summarily affirmed. See 989 So. d 114, 115 (008) (per curiam). The Florida Supreme Court reversed, holding that 4 FLORIDA v. HARRIS Opinion of the Court Wheetley lacked probable cause to search Harris’s vehicle under the Fourth Amendment. “[W]hen a dog alerts,” the court wrote, “the fact that the dog has been trained and certified is simply not enough to establish probable cause.” To demonstrate a dog’s reliability, the State needed to produce a wider array of evidence: “[T]he State must present the dog’s training and certification records, an explanation of the meaning of the particular training and certification, field perfor- mance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliabil- ity.” at The court particularly stressed the need for “evidence of the dog’s performance history,” including records showing “how often the dog has alerted in the field without illegal contraband having been found.” That data, the court stated, could help to expose such problems as a handler’s tendency (conscious or not) to “cue [a] dog to alert” and “a dog’s inability to distinguish between resid- ual odors and actual drugs.” 774. Accordingly, an officer like Wheetley who did not keep full records of his dog’s field performance could never have the requisite cause to think “that the dog is a reliable indicator of drugs.” Judge Canady dissented, maintaining that the major- ity’s “elaborate and inflexible evidentiary requirements” went beyond the demands of probable cause. at He would have affirmed the trial court’s ruling on the strength of Aldo’s training history and Harris’s “fail[ure] to present any evidence challenging” it. We granted certiorari, 566 U. S. (01), and now reverse. Cite as: 568 U. S. (013) 5 Opinion of the Court II A police officer has probable cause to conduct a search when “the facts available to [him] would ‘warrant a [per- son] of reasonable caution in the belief ’” that contraband or evidence of a crime is present. Texas v. Brown, 460 U.S. 730, 74 (1983) (plurality opinion) ); see Safford Unified School Dist. 370– (009). The test for probable cause is not reducible to “precise definition or quantification.” “Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence have no place in the [probable-cause] decision.” All we have required is the kind of “fair probability” on which “reasonable and prudent [people,] not legal technicians, act.” 31 (internal quotation marks omitted). In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. See, e.g., Prin- 540 U. S., at ; ; Brinegar v. United States, We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach. In for example, we abandoned our old test for as- sessing the reliability of informants’ tips because it had devolved into a “complex superstructure of evidentiary and analytical rules,” any one of which, if not complied with, would derail a finding of probable cause. 46 U. S., at 35. We lamented the development of a list of “inflexi- ble, independent requirements applicable in every case.” Probable cause, we emphasized, is “a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even use- fully, reduced to a neat set of legal rules.” The Florida Supreme Court flouted this established 6 FLORIDA v. HARRIS Opinion of the Court approach to determining probable cause. To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off.1 Most prominently, an alert cannot estab- lish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.) No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause. That is the antithesis of a totality-of-the-circumstances analysis. It is, indeed, the very thing we criticized in when we overhauled our method for assessing the trustworthiness of an informant’s tip. A gap as to any one matter, we explained, should not sink the State’s case; rather, that “deficiency may be compensated for, in determining the overall reliability of a tip, by a strong showing as to other indicia of reliability.” So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent eviden- tiary requirements. No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause. Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evi- —————— 1 Bythe time of oral argument in this case, even Harris declined to defend the idea that the Fourth Amendment compels the State to produce each item of evidence the Florida Supreme Court enumerated. See Tr. of Oral Arg. 9–30 (“I don’t believe the Constitution requires [that list]”). Harris instead argued that the court’s decision, although “look[ing] rather didactic,” in fact did not impose any such requirement. ; see (“[I]t’s not a specific recipe that can’t be de- viated from”). But in reading the decision below as establishing a man- datory checklist, we do no more than take the court at its (oft-repeated) word. See, e.g., 758, 759, 771, (holding that the State “must” present the itemized evidence). Cite as: 568 U. S. (013) 7 Opinion of the Court dence, when in most cases they have relatively limited import. Errors may abound in such records. If a dog on patrol fails to alert to a car containing drugs, the mis- take usually will go undetected because the officer will not initiate a search. Field data thus may not capture a dog’s false negatives. Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcot- ics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugs pre- viously in the vehicle or on the driver’s person. Field data thus may markedly overstate a dog’s real false positives. By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard train- ing and certification settings. There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he —————— See U. S. Dept. of Army, Military Working Dog Program 30 (Pam- phlet 190–1, 1993) (“The odor of a substance may be present in enough concentration to cause the dog to respond even after the substance has been removed. Therefore, when a detector dog responds and no drug or explosive is found, do not assume the dog has made an error”); S. Bryson, Police Dog Tactics 57 (d ed. 000) (“Four skiers toke up in the parking lot before going up the mountain. Five minutes later a narcotic detector dog alerts to the car. There is no dope inside. How- ever, the dog has performed correctly”). The Florida Supreme Court treated a dog’s response to residual odor as an error, referring to the “inability to distinguish between [such] odors and actual drugs” as a “facto[r] that call[s] into question Aldo’s reliability.” 71 So. 3d, – 774; see But that statement reflects a misunderstanding. A detection dog recognizes an odor, not a drug, and should alert when- ever the scent is present, even if the substance is gone (just as a police officer’s much inferior nose detects the odor of marijuana for some time after a joint has been smoked). In the usual case, the mere chance that the substance might no longer be at the location does not matter; a well-trained dog’s alert establishes a fair probability—all that is re- quired for probable cause—that either drugs or evidence of a drug crime (like the precursor chemicals in Harris’s truck) will be found. 8 FLORIDA v. HARRIS Opinion of the Court should not. The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.3 For that reason, evidence of a dog’s satisfactory perfor- mance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs. After all, law enforce- ment units have their own strong incentive to use effective training and certification programs, because only accurate drug-detection dogs enable officers to locate contraband without incurring unnecessary risks or wasting limited time and resources. A defendant, however, must have an opportunity to challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings. Indeed, evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may some- times be relevant, as the Solicitor General acknowledged —————— 3 See K. Furton, J. Greb, & H. Holness, Florida Int’l Univ., The Scien- tific Working Group on Dog and Orthogonal Detector Guidelines 1, 61– 6, 66 (010) (recommending as a “best practice” that a dog’s reliability should be assessed based on “the results of certification and proficiency assessments,” because in those “procedure[s] you should know whether you have a false positive,” unlike in “most operational situations”). Cite as: 568 U. S. (013) 9 Opinion of the Court at oral argument. See Tr. of Oral Arg. 3–4 (“[T]he defendant can ask the handler, if the handler is on the stand, about field performance, and then the court can give that answer whatever weight is appropriate”). And even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (con- sciously or not), or if the team was working under un- familiar conditions. In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, con- sistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defend- ant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reason- ably prudent person think that a search would reveal con- traband or evidence of a crime. A sniff is up to snuff when it meets that test. III And here, Aldo’s did. The record in this case amply supported the trial court’s determination that Aldo’s alert gave Wheetley probable cause to search Harris’s truck. The State, as earlier described, introduced substantial 10 FLORIDA v. HARRIS Opinion of the Court evidence of Aldo’s training and his proficiency in finding drugs. See at –3. The State showed that two years before alerting to Harris’s truck, Aldo had success- fully completed a 10-hour program in narcotics detection, and separately obtained a certification from an independ- ent company. And although the certification expired after a year, the Sheriff ’s Office required continuing training for Aldo and Wheetley. The two satisfied the require- ments of another, 40-hour training program one year prior to the search at issue. And Wheetley worked with Aldo for four hours each week on exercises designed to keep their skills sharp. Wheetley testified, and written records confirmed, that in those settings Aldo always performed at the highest level. Harris, as also noted above, declined to challenge in the trial court any aspect of Aldo’s training. See To be sure, Harris’s briefs in this Court raise questions about that training’s adequacy—for example, whether the programs simulated sufficiently diverse environments and whether they used enough blind testing (in which the handler does not know the location of drugs and so cannot cue the dog). See Brief for Respondent 57–58. Similarly, Harris here queries just how well Aldo performed in con- trolled testing. See But Harris never voiced those doubts in the trial court, and cannot do so for the first time here. See, e.g., Rugendorf v. United States, 376 U.S. 58, 534 (1964). As the case came to the trial court, Aldo had successfully completed two recent drug-detection courses and maintained his proficiency through weekly training exercises. Viewed alone, that training record— with or without the prior certification—sufficed to estab- lish Aldo’s reliability. See at 8–9. And Harris’s cross-examination of Wheetley, which focused on Aldo’s field performance, failed to rebut the State’s case. Harris principally contended in the trial court that because Wheetley did not find any of the sub- Cite as: 568 U. S. (013) 11 Opinion of the Court stances Aldo was trained to detect, Aldo’s two alerts must have been false. See Brief for Respondent 1; App. 77–80. But we have already described the hazards of inferring too much from the failure of a dog’s alert to lead to drugs, see ; and here we doubt that Harris’s logic does justice to Aldo’s skills. Harris cooked and used metham- phetamine on a regular basis; so as Wheetley later sur- mised, Aldo likely responded to odors that Harris had transferred to the driver’s-side door handle of his truck. See A well-trained drug-detection dog should alert to such odors; his response to them might appear a mistake, but in fact is not. See n. And still more fundamentally, we do not evaluate probable cause in hindsight, based on what a search does or does not turn up. See United States v. Di Re, 33 U.S. 581, For the reasons already stated, Wheetley had good cause to view Aldo as a reliable detector of drugs. And no special circumstance here gave Wheetley reason to discount Aldo’s usual dependability or distrust his response to Harris’s truck. Because training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that show- ing, we agree with the trial court that Wheetley had prob- able cause to search Harris’s truck. We accordingly reverse the judgment of the Florida Supreme Court. It is so ordered

Justice Breyer

majority

Wittman v. Personhuballah

2016-05-23

https://www.courtlistener.com/opinion/3205873/wittman-v-personhuballah/

https://www.courtlistener.com/api/rest/v3/clusters/3205873/

2015-049

Ten Members of Congress from Virginia, intervenors in the District Court below, have appealed a judgment from a three-judge panel striking down a congressional redis- tricting plan applicable to the November 2016 election. We conclude that the intervenors now lack standing to pursue the appeal. And we consequently order the appeal dismissed. I This lawsuit began in October 2013, after the then- Governor of Virginia signed into law a new congressional redistricting plan (which we shall call the “Enacted Plan”) designed to reflect the results of the 2010 census. Three voters from Congressional District 3 brought this lawsuit against the Commonwealth. They challenged the Enacted Plan on the ground that its redrawing of their district’s lines was an unconstitutional racial gerrymander. The Members of Congress now before us intervened to help defend the Enacted Plan. After a bench trial, a divided three-judge District Court agreed with the voters. It concluded that the Common- 2 WITTMAN v. PERSONHUBALLAH Opinion of the Court wealth had used race as the predominant basis for modify- ing the boundaries of District 3. Page v. Virginia State Bd. of Elections, 58 F. Supp. 3d 533, 550 (ED Va. 2014). And it found that the Commonwealth’s use of race, when scrutinized strictly, was not narrowly tailored to serve a compelling governmental interest. Id., at 553. The Commonwealth of Virginia did not appeal. Instead, the intervenor Members of Congress appealed the District Court’s judgment to this Court. See 28 U.S. C. §1253 (granting the right to directly appeal certain three-judge district court orders to the Supreme Court). Having just decided a racial gerrymandering case, Alabama Legisla- tive Black Caucus v. Alabama, 575 U. S. ___ (2015), we vacated the District Court’s judgment and remanded for reconsideration in light of that recent decision. Cantor v. Personhuballah, 575 U. S. ___ (2015). On remand the District Court again decided that Dis- trict 3, as modified by the Enacted Plan, was an unconsti- tutional racial gerrymander. Page v. Virginia State Bd. of Elections, 2015 WL 3604029, *19 (ED Va., June 5, 2015). The court’s order set forth a deadline of September 1, 2015, for the Virginia Legislature to adopt a new redis- tricting plan. Again, the Commonwealth of Virginia decided not to appeal. And again, the intervenor Members of Congress appealed to this Court. On September 28, 2015, we asked the parties to file supplemental briefs addressing whether the intervenors had standing to appeal the District Court’s decision. 576 U. S. ___. As relevant here, the intervenors argued in their supplemental brief that they had standing because the District Court’s order, if allowed to stand, would necessarily result in a redrawing of their districts that would harm some of the intervenors’ reelection pro- spects. On November 13, 2015, we issued an order ex- plaining that the Court was “postpon[ing]” “consideration of the question of jurisdiction” until “the hearing of the Cite as: 578 U. S. ____ (2016) 3 Opinion of the Court case on the merits.” In addition, our order instructed the parties to dedicate a portion of their briefs and their oral argument time to the issue of standing—specifically, “[w]hether [the intervenors] lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.” 577 U. S. ___. In the meantime, the Virginia Legislature failed to meet the September 1 deadline imposed by the District Court. The District Court thus appointed a Special Master to develop a new districting plan. The Special Master did so, and on January 7, 2016, the District Court approved that plan (which we shall call the “Remedial Plan”). The inter- venor Members of Congress asked this Court to stay im- plementation of the Remedial Plan pending resolution of their direct appeal to this Court. We declined to do so. 577 U. S. ___ (2016). On March 21, we heard oral argu- ment. That argument focused both on (1) the merits of intervenors’ claims denying any racial gerrymander and (2) the question of standing. In respect to standing, the Court focused on whether the District Court’s approval of the Remedial Plan on January 7 supported, or under- mined, the intervenors’ standing argument that, in the absence of the original Enacted Plan, they would suffer harm. Tr. of Oral Arg. 9–23. II As our request for supplemental briefing, our order postponing consideration of jurisdiction, and our questions at oral argument suggested, we cannot decide the merits of this case unless the intervenor Members of Congress challenging the District Court’s racial-gerrymandering decision have standing. We conclude that the intervenors now lack standing. We must therefore dismiss the appeal for lack of jurisdiction. Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of 4 WITTMAN v. PERSONHUBALLAH Opinion of the Court an actual “Cas[e]” or “Controvers[y].” This restriction requires a party invoking a federal court’s jurisdiction to demonstrate standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). A party has standing only if he shows that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the conduct being challenged, and that the injury will likely be “redressed” by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561 (1992) (internal quotation marks and ellipsis omitted). The need to satisfy these three requirements persists throughout the life of the lawsuit. Arizonans for Official English, 520 U.S., at 67. The relevant parties here are the intervenor Members of Congress. Since the Commonwealth of Virginia has not pursued an appeal, only the intervenors currently attack the District Court’s decision striking down the Enacted Plan. And an “intervenor cannot step into the shoes of the original party” (here, the Commonwealth) “unless the intervenor independently ‘fulfills the requirements of Article III.’ ” Id., at 65 (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Although 10 current and former Members of Congress are technically intervenors, only 3 of the 10 now claim before this Court that they have standing. Those three Members are Representative Randy Forbes, Representa- tive Robert Wittman, and Representative David Brat. Representative Forbes, the Republican incumbent in Congressional District 4, told us in his brief that, unless the Enacted Plan is upheld, District 4 will be “completely transform[ed] from a 48% Democratic district into a safe 60% Democratic district.” Brief for Appellants 58. Accord- ing to Forbes, the threat of that kind of transformation compelled him to run in a different district, namely, Con- gressional District 2. At oral argument, Forbes’ counsel told the Court that, if the Enacted Plan were reinstated, Representative Forbes Cite as: 578 U. S. ____ (2016) 5 Opinion of the Court would abandon his election effort in Congressional District 2 and run in his old district, namely, Congressional Dis- trict 4. Tr. of Oral Arg. 10. Soon after oral argument, however, the Court received a letter from counsel stating that Representative Forbes would “continue to seek elec- tion in District 2 regardless of whether the Enacted Plan is reinstated.” Letter from Counsel for Appellants to Scott S. Harris, Clerk of Court (Mar. 25, 2016), p. 2. Given this letter, we do not see how any injury that Forbes might have suffered “is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U. S. ___, ___–___ (2013) (slip op., at 5–6). Consequently, we need not decide whether, at the time he first intervened, Repre- sentative Forbes possessed standing. Regardless, he does not possess standing now. See Arizonans for Official English, supra, at 65; Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478 (1990). Representative Wittman and Representative Brat are Republicans representing Congressional District 1 and Congressional District 7, respectively. In their opening brief they argue that they have standing to challenge the District Court’s order because, unless the Enacted Plan is reinstated, “a portion of the[ir] ‘base electorate’ ” will necessarily be replaced with “unfavorable Democratic voters,” thereby reducing the likelihood of the Representa- tives’ reelection. Brief for Appellants 58; see also Applica- tion for Stay of Remedial Plan Pending Resolution of Direct Appeal of Liability Judgment 25. Even assuming, without deciding, that this kind of injury is legally cog- nizable, Representatives Wittman and Brat have not identified record evidence establishing their alleged harm. We have made clear that the “party invoking federal jurisdiction bears the burden of establishing” that he has suffered an injury by submitting “affidavit[s] or other evidence.” Lujan, 504 U.S., at 561. When challenged by a court (or by an opposing party) concerned about standing, 6 WITTMAN v. PERSONHUBALLAH Opinion of the Court the party invoking the court’s jurisdiction cannot simply allege a nonobvious harm, without more. Ibid. Here, there is no “more.” Representatives Wittman and Brat claim that unless the Enacted Plan is reinstated, their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced. But we have examined the briefs, looking for any evidence that an alternative to the Enacted Plan (including the Remedial Plan) will reduce the relevant intervenors’ chances of reelection, and have found none. The briefs focus on Con- gressional District 3 and Congressional District 4, districts with which Representatives Wittman and Brat are not associated. We need go no further. Given the lack of evidence that any of the three Representatives has standing, we need not decide when, or whether, evidence of the kind of injury they allege would prove sufficient for purposes of Article III’s requirements. In light of the letter we have received about Representative Forbes, and the absence of any evidence in the briefs supporting any harm to the other two Representatives, we conclude that none of the inter- venors has standing to bring an appeal in this case. We consequently lack jurisdiction and therefore dismiss this appeal. It is so ordered

Ten Members of Congress from Virginia, intervenors in the District Court below, have appealed a judgment from a three-judge panel striking down a congressional redis- tricting plan applicable to the November 2016 election. We conclude that the intervenors now lack standing to pursue the appeal. And we consequently order the appeal dismissed. I This lawsuit began in October 2013, after the then- Governor of Virginia signed into law a new congressional redistricting plan (which we shall call the “Enacted Plan”) designed to reflect the results of the 2010 census. Three voters from Congressional District 3 brought this lawsuit against the Commonwealth. They challenged the Enacted Plan on the ground that its redrawing of their district’s lines was an unconstitutional racial gerrymander. The Members of Congress now before us intervened to help defend the Enacted Plan. After a bench trial, a divided three-judge District Court agreed with the voters. It concluded that the Common- 2 WITTMAN v. PERSONHUBALLAH Opinion of the Court wealth had used race as the predominant basis for modify- ing the boundaries of District 3. And it found that the Commonwealth’s use of race, when scrutinized strictly, was not narrowly tailored to serve a compelling governmental interest. The Commonwealth of Virginia did not appeal. Instead, the intervenor Members of Congress appealed the District Court’s judgment to this Court. See 28 U.S. C. (granting the right to directly appeal certain three-judge district court orders to the Supreme Court). Having just decided a racial gerrymandering case, Alabama Legisla- tive Black Caucus v. Alabama, 575 U. S. we vacated the District Court’s judgment and remanded for reconsideration in light of that recent decision. Cantor v. Personhuballah, 575 U. S. On remand the District Court again decided that Dis- trict 3, as modified by the Enacted Plan, was an unconsti- tutional racial gerrymander. The court’s order set forth a deadline of September 1, for the Virginia Legislature to adopt a new redis- tricting plan. Again, the Commonwealth of Virginia decided not to appeal. And again, the intervenor Members of Congress appealed to this Court. On September 28, we asked the parties to file supplemental briefs addressing whether the intervenors had standing to appeal the District Court’s decision. 576 U. S. As relevant here, the intervenors argued in their supplemental brief that they had standing because the District Court’s order, if allowed to stand, would necessarily result in a redrawing of their districts that would harm some of the intervenors’ reelection pro- spects. On November 13, we issued an order ex- plaining that the Court was “postpon[ing]” “consideration of the question of jurisdiction” until “the hearing of the Cite as: 578 U. S. (2016) 3 Opinion of the Court case on the merits.” In addition, our order instructed the parties to dedicate a portion of their briefs and their oral argument time to the issue of standing—specifically, “[w]hether [the intervenors] lack standing because none reside in or represent the only congressional district whose constitutionality is at issue in this case.” 577 U. S. In the meantime, the Virginia Legislature failed to meet the September 1 deadline imposed by the District Court. The District Court thus appointed a Special Master to develop a new districting plan. The Special Master did so, and on January 7, 2016, the District Court approved that plan (which we shall call the “Remedial Plan”). The inter- venor Members of Congress asked this Court to stay im- plementation of the Remedial Plan pending resolution of their direct appeal to this Court. We declined to do so. 577 U. S. (2016). On March 21, we heard oral argu- ment. That argument focused both on (1) the merits of intervenors’ claims denying any racial gerrymander and (2) the question of standing. In respect to standing, the Court focused on whether the District Court’s approval of the Remedial Plan on January 7 supported, or under- mined, the intervenors’ standing argument that, in the absence of the original Enacted Plan, they would suffer harm. Tr. of Oral Arg. 9–23. II As our request for supplemental briefing, our order postponing consideration of jurisdiction, and our questions at oral argument suggested, we cannot decide the merits of this case unless the intervenor Members of Congress challenging the District Court’s racial-gerrymandering decision have standing. We conclude that the intervenors now lack standing. We must therefore dismiss the appeal for lack of jurisdiction. Article III of the Constitution grants the federal courts the power to decide legal questions only in the presence of 4 WITTMAN v. PERSONHUBALLAH Opinion of the Court an actual “Cas[e]” or “Controvers[y].” This restriction requires a party invoking a federal court’s jurisdiction to demonstrate standing. Arizonans for Official v. Arizona, A party has standing only if he shows that he has suffered an “injury in fact,” that the injury is “fairly traceable” to the conduct being challenged, and that the injury will likely be “redressed” by a favorable decision. (internal quotation marks and ellipsis omitted). The need to satisfy these three requirements persists throughout the life of the lawsuit. Arizonans for Official The relevant parties here are the intervenor Members of Congress. Since the Commonwealth of Virginia has not pursued an appeal, only the intervenors currently attack the District Court’s decision striking down the Enacted Plan. And an “intervenor cannot step into the shoes of the original party” (here, the Commonwealth) “unless the intervenor independently ‘fulfills the requirements of Article III.’ ” (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Although 10 current and former Members of Congress are technically intervenors, only 3 of the 10 now claim before this Court that they have standing. Those three Members are Representative Randy Forbes, Representa- tive Robert Wittman, and Representative David Brat. Representative Forbes, the Republican incumbent in Congressional District 4, told us in his brief that, unless the Enacted Plan is upheld, District 4 will be “completely transform[ed] from a 48% Democratic district into a safe 60% Democratic district.” Brief for Appellants 58. Accord- ing to Forbes, the threat of that kind of transformation compelled him to run in a different district, namely, Con- gressional District 2. At oral argument, Forbes’ counsel told the Court that, if the Enacted Plan were reinstated, Representative Forbes Cite as: 578 U. S. (2016) 5 Opinion of the Court would abandon his election effort in Congressional District 2 and run in his old district, namely, Congressional Dis- trict 4. Tr. of Oral Arg. 10. Soon after oral argument, however, the Court received a letter from counsel stating that Representative Forbes would “continue to seek elec- tion in District 2 regardless of whether the Enacted Plan is reinstated.” Letter from Counsel for Appellants to Scott S. Harris, Clerk of Court (Mar. 25, 2016), p. 2. Given this letter, we do not see how any injury that Forbes might have suffered “is likely to be redressed by a favorable judicial decision.” Hollingsworth v. Perry, 570 U. S. – (2013) (slip op., at 5–6). Consequently, we need not decide whether, at the time he first intervened, Repre- sentative Forbes possessed standing. Regardless, he does not possess standing now. See Arizonans for Official ; Representative Wittman and Representative Brat are Republicans representing Congressional District 1 and Congressional District 7, respectively. In their opening brief they argue that they have standing to challenge the District Court’s order because, unless the Enacted Plan is reinstated, “a portion of the[ir] ‘base electorate’ ” will necessarily be replaced with “unfavorable Democratic voters,” thereby reducing the likelihood of the Representa- tives’ reelection. Brief for Appellants 58; see also Applica- tion for Stay of Remedial Plan Pending Resolution of Direct Appeal of Liability Judgment 25. Even assuming, without deciding, that this kind of injury is legally cog- nizable, Representatives Wittman and Brat have not identified record evidence establishing their alleged harm. We have made clear that the “party invoking federal jurisdiction bears the burden of establishing” that he has suffered an injury by submitting “affidavit[s] or other evidence.” When challenged by a court (or by an opposing party) concerned about standing, 6 WITTMAN v. PERSONHUBALLAH Opinion of the Court the party invoking the court’s jurisdiction cannot simply allege a nonobvious harm, without more. Here, there is no “more.” Representatives Wittman and Brat claim that unless the Enacted Plan is reinstated, their districts will be flooded with Democratic voters and their chances of reelection will accordingly be reduced. But we have examined the briefs, looking for any evidence that an alternative to the Enacted Plan (including the Remedial Plan) will reduce the relevant intervenors’ chances of reelection, and have found none. The briefs focus on Con- gressional District 3 and Congressional District 4, districts with which Representatives Wittman and Brat are not associated. We need go no further. Given the lack of evidence that any of the three Representatives has standing, we need not decide when, or whether, evidence of the kind of injury they allege would prove sufficient for purposes of Article III’s requirements. In light of the letter we have received about Representative Forbes, and the absence of any evidence in the briefs supporting any harm to the other two Representatives, we conclude that none of the inter- venors has standing to bring an appeal in this case. We consequently lack jurisdiction and therefore dismiss this appeal. It is so ordered

Justice Alito

majority

Dutra Group v. Batterton

2019-06-24

https://www.courtlistener.com/opinion/4632239/dutra-group-v-batterton/

https://www.courtlistener.com/api/rest/v3/clusters/4632239/

2018-060

By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed “in the man- ner of a common law court.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 489–490 (2008). Thus, where Congress has not prescribed specific rules, federal courts must develop the “amalgam of traditional common-law rules, modifica- tions of those rules, and newly created rules” that forms the general maritime law. East River S. S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864–865 (1986). But maritime law is no longer solely the province of the Federal Judiciary. “Congress and the States have legis- lated extensively in these areas.” Miles v. Apex Marine Corp., 498 U.S. 19, 27 (1990). When exercising its inher- ent common-law authority, “an admiralty court should look primarily to these legislative enactments for policy guidance.” Ibid. We may depart from the policies found in the statutory scheme in discrete instances based on long- established history, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424–425 (2009), but we do so 2 DUTRA GROUP v. BATTERTON Opinion of the Court cautiously in light of Congress’s persistent pursuit of “uniformity in the exercise of admiralty jurisdiction.” Miles, supra, at 26 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 401 (1970)). This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice con- fronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In Miles, which concerned a wrongful- death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of society. 498 U.S., at 23. And in Atlantic Sounding, after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and cure. 557 U.S., at 407. Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions. I In order to determine the remedies for unseaworthiness, we must consider both the heritage of the cause of action in the common law and its place in the modern statutory framework. A The seaman’s right to recover damages for personal injury on a claim of unseaworthiness originates in the admiralty court decisions of the 19th century. At the time, “seamen led miserable lives.” D. Robertson, S. Friedell, & M. Sturley, Admiralty and Maritime Law in the United States 163 (2d ed. 2008). Maritime law was largely judge- Cite as: 588 U. S. ____ (2019) 3 Opinion of the Court made, and seamen were viewed as “emphatically the wards of the admiralty.” Harden v. Gordon, 11 F. Cas. 480, 485 (No. 6,047) (CC Me. 1823). In that era, the pri- mary responsibility for protecting seamen lay in the courts, which saw mariners as “peculiarly entitled to”— and particularly in need of—judicial protection “against the effects of the superior skill and shrewdness of masters and owners of ships.” Brown v. Lull, 4 F. Cas. 407, 409 (No. 2,018) (CC Mass. 1836) (Story, J.).1 Courts of admiralty saw it as their duty not to be “con- fined to the mere dry and positive rules of the common law” but to “act upon the enlarged and liberal jurispru- dence of courts of equity; and, in short, so far as their powers extend[ed], they act[ed] as courts of equity.” Ibid. This Court interpreted the Constitution’s grant of admi- ralty jurisdiction to the Federal Judiciary as “the power to . . . dispose of [a case] as justice may require.” The Reso- lute, 168 U.S. 437, 439 (1897). Courts used this power to protect seamen from injury primarily through two causes of action. The first, mainte- nance and cure, has its roots in the medieval and renais- sance law codes that form the ancient foundation of mari- time common law.2 The duty of maintenance and cure —————— 1 Riding circuit, Justice Story described mariners in markedly pater- nalistic terms: “Seamen are a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily sur- prised.” Brown, 4 F. Cas., at 409. 2 A right resembling maintenance and cure appears in the Laws of Oleron, promulgated by Eleanor of Aquitaine around 1160, in the 13th- century Laws of Wisbuy, in the Laws of the Hanse Towns, published in 1597, and in the Marine Ordinances of Louis XIV, published in 1681. 4 DUTRA GROUP v. BATTERTON Opinion of the Court requires a ship’s master “to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). This duty, “which arises from the contract of employment, does not rest upon negligence or culpability on the part of the owner or master, nor is it restricted to those cases where the seaman’s employment is the cause of the injury or illness.” Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 527 (1938) (citations omitted). The second claim, unseaworthiness, is a much more recent development and grew out of causes of action unre- lated to personal injury. In its earliest forms, an unsea- worthiness claim gave sailors under contract to sail on a ship the right to collect their wages even if they had re- fused to board an unsafe vessel after discovering its condi- tion. See, e.g., Dixon v. The Cyrus, 7 F. Cas. 755, 757 (No. 3,930) (Pa. 1789); Rice v. The Polly & Kitty, 20 F. Cas. 666, 667 (No. 11,754) (Pa. 1789). Similarly, unseaworthiness was a defense to criminal charges against seamen who refused to obey a ship master’s orders. See, e.g., United States v. Nye, 27 F. Cas. 210, 211 (No. 15,906) (CC Mass. 1855); United States v. Ashton, 24 F. Cas. 873, 874–875 (No. 14,470) (CC Mass. 1834). A claim of unseaworthiness could also be asserted by a shipper to recover damages or by an insurer to deny coverage when the poor condition of the ship resulted in damage to or loss of the cargo. See The Caledonia, 157 U.S. 124, 132–136 (1895) (cataloging cases). Only in the latter years of the 19th century did unsea- worthiness begin a long and gradual evolution toward —————— See 30 F. Cas. 1169 (collecting sources). The relevant passages are the Laws of Oleron, Arts. VI and VII, 30 F. Cas., at 1174–1175; the Laws of Wisbuy, Arts. XVIII, XIX, and XXXIII, 30 F. Cas., at 1191–1192; the Laws of the Hanse Towns, Arts. XXXIX and XLV, 30 F. Cas., at 1200; the Marine Ordinances of Louis XIV, Tit. IV, Arts. XI and XII, 30 F. Cas., at 1209. Cite as: 588 U. S. ____ (2019) 5 Opinion of the Court remedying personal injury. Courts began to extend the cases about refusals to serve to allow recovery for mari- ners who were injured because of the unseaworthy condi- tion of the vessel on which they had served.3 These early cases were sparse, and they generally allowed recovery only when a vessel’s owner failed to exercise due diligence to ensure that the ship left port in a seaworthy condition. See, e.g., The Robert C. McQuillen, 91 F. 685, 686–687 (Conn. 1899); The Lizzie Frank, 31 F. 477, 480 (SD Ala. 1887); The Tammerlane, 47 F. 822, 824 (ND Cal. 1891). Unseaworthiness remained a suspect basis for personal injury claims until 1903, when, in dicta, this Court con- cluded that “the vessel and her owner are . . . liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship.” The Osceola, 189 U.S. 158, 175 (1903). Although this was the first recogni- tion of unseaworthiness as a personal injury claim in this Court, we took pains to note that the claim was strictly cabined. Ibid. Some of the limitations on recovery were imported from the common law. The fellow-servant doc- trine, in particular, prohibited recovery when an employee suffered an injury due to the negligent act of another employee without negligence on the part of the employer. Ibid.; see, e.g., The Sachem, 42 F. 66 (EDNY 1890) (deny- —————— 3 Most of these cases allowed recovery for personal injury in “errone- ous reliance” on certain passages in Dixon v. The Cyrus, 7 F. Cas. 755 (No. 3,930) (Pa. 1789). Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 390 (1954) (Tetreault). These cases misread The Cyrus as resting on an implied warranty of seaworthiness. Tetreault 390. But The Cyrus is more fairly read to turn on a theory of true implied condition. While a warranty would provide a basis for damages if the breach caused an injury, an implied condition would only allow the mariner to escape performance without surrendering the benefit of the contract. In other words, “[t]he mani- fest unseaworthiness of the vessel at the commencement of the voyage would excuse non-performance by the mariners but did not constitute a basis for damages.” Tetreault 390. 6 DUTRA GROUP v. BATTERTON Opinion of the Court ing recovery based on fellow-servant doctrine). Because a claimant had to show that he was injured by some aspect of the ship’s condition that rendered the vessel unseawor- thy, a claim could not prevail based on “the negligence of the master, or any member of the crew.” 4 The Osceola, supra, at 175; see also The City of Alexandria, 17 F. 390 (SDNY 1883) (no recovery based on negligence that does not render vessel unseaworthy). Instead, a seaman had to show that the owner of the vessel had failed to exercise due diligence in ensuring the ship was in seaworthy condi- tion. See generally Dixon v. United States, 219 F.2d 10, 12–14 (CA2 1955) (Harlan, J.) (cataloging evolution of the claim). B In the early 20th century, then, under “the general maritime law . . . a vessel and her owner . . . were liable to an indemnity for injuries received by a seaman in conse- quence of the unseaworthiness of the ship and her appli- ances; but a seaman was not allowed to recover an indem- nity for injuries sustained through the negligence of the master or any member of the crew.” Pacific S. S. Co. v. Peterson, 278 U.S. 130, 134 (1928); see also Plamals v. S. S. “Pinar Del Rio,” 277 U.S. 151, 155 (1928) (vessel was not unseaworthy when mate negligently selected defective rope but sound rope was available on board). Because of these severe limitations on recovery, “the seaman’s right to recover damages for injuries caused by unseaworthiness —————— 4 To be sure, in some instances the concept of “unseaworthiness” ex- panded to embrace conditions that resulted from the negligence of fellow servants, see, e.g., Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922) (vessel was rendered unseaworthy when it left port with gasoline in a container labeled “coal oil”); see also G. Robinson, Handbook of Admiralty Law in the United States §37, p. 305–307 (1st ed. 1939) (collecting cases). But it was only after the passage of the Jones Act that negligence by a fellow mariner provided a reliable basis for recovery. See Part I–B, infra. Cite as: 588 U. S. ____ (2019) 7 Opinion of the Court of the ship was an obscure and relatively little used rem- edy.” G. Gilmore & C. Black, The Law of Admiralty §6–38, p. 383 (2d ed. 1975) (Gilmore & Black). Tremendous shifts in mariners’ rights took place be- tween 1920 and 1950. First, during and after the First World War, Congress enacted a series of laws regulating maritime liability culminating in the Merchant Marine Act of 1920, §33, 41 Stat. 1007 (Jones Act), which codified the rights of injured mariners and created new statutory claims that were freed from many of the common-law limitations on recovery. The Jones Act provides injured seamen with a cause of action and a right to a jury. 46 U.S. C. §30104. Rather than create a new structure of substantive rights, the Jones Act incorporated the rights provided to railway workers under the Federal Employers’ Liability Act (FELA), 45 U.S. C. §51 et seq. 46 U.S. C. §30104. In the 30 years after the Jones Act’s passage, “the Act was the vehicle for almost all seamen’s personal injury and death actions.” Gilmore & Black §6–20, at 327. But the Jones Act was overtaken in the 1950s by the second fundamental change in personal injury maritime claims—and it was this Court, not Congress, that played the leading role. In a pair of decisions in the late 1940s, the Court transformed the old claim of unseaworthiness, which had demanded only due diligence by the vessel owner, into a strict-liability claim. In Mahnich v. South- ern S. S. Co., 321 U.S. 96 (1944), the Court stated that “the exercise of due diligence does not relieve the owner of his obligation” to provide a seaworthy ship and, in the same ruling, held that the fellow-servant doctrine did not provide a defense. Id., at 100, 101. Mahnich’s interpreta- tion of the early cases may have been suspect, see Tetreault 397–398 (Mahnich rests on “startling misstate- ment” of relevant precedents), but its assertion triggered a sea-change in maritime personal injury. Less than two years later, we affirmed that the duty of seaworthiness 8 DUTRA GROUP v. BATTERTON Opinion of the Court was “essentially a species of liability without fault . . . neither limited by conceptions of negligence nor contrac- tual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy.” Seas Ship- ping Co. v. Sieracki, 328 U.S. 85, 94–95 (1946) (citations omitted). From Mahnich forward, “the decisions of this Court have undeviatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care.” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549 (1960). As a result of Mah- nich and Sieracki, between the 1950s and 1970s “the unseaworthiness count [was] the essential basis for recov- ery with the Jones Act count preserved merely as a jury- getting device.”5 Gilmore & Black §6–20, at 327–328. The shifts in plaintiff preferences between Jones Act and unseaworthiness claims were possible because of the significant overlap between the two causes of action. See id., §6–38, at 383. One leading treatise goes so far as to describe the two claims as “alternative ‘grounds’ of recov- ery for a single cause of action.” 2 R. Force & M. Norris, The Law of Seamen §30:90, p. 30–369 (5th ed. 2003). The two claims are so similar that, immediately after the Jones Act’s passage, we held that plaintiffs could not submit both to a jury. Plamals, supra, at 156–157 (“Sea- men may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both”). We no longer require such election. See McAl- lister v. Magnolia Petroleum Co., 357 U.S. 221, 222, n. 2 (1958). But a plaintiff still cannot duplicate his recovery —————— 5 The decline of Jones Act claims was arrested, although not reversed, by our holding that some negligent actions on a vessel may create Jones Act liability without rendering the vessel unseaworthy. See Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971); see also 1B Benedict on Admiralty §23, p. 3–35 (7th rev. ed. 2018). Cite as: 588 U. S. ____ (2019) 9 Opinion of the Court by collecting full damages on both claims because, “whether or not the seaman’s injuries were occasioned by the un- seaworthiness of the vessel or by the negligence of the master or members of the crew, . . . there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong.” Peterson, 278 U.S., at 138; see also 2 Force, supra, §§26:73, 30:90. II Christopher Batterton worked as a deckhand and crew member on vessels owned and operated by the Dutra Group. According to Batterton’s complaint, while working on a scow near Newport Beach, California, Batterton was injured when his hand was caught between a bulkhead and a hatch that blew open as a result of unventilated air accumulating and pressurizing within the compartment. Batterton sued Dutra and asserted a variety of claims, including negligence, unseaworthiness, maintenance and cure, and unearned wages. He sought to recover general and punitive damages. Dutra moved to strike Batterton’s claim for punitive damages, arguing that they are not available on claims for unseaworthiness. The District Court denied Dutra’s motion, 2014 WL 12538172 (CD Cal., Dec. 15, 2014), but agreed to certify an interlocutory ap- peal on the question, 2015 WL 13752889 (CD Cal., Feb. 6, 2015). The Court of Appeals affirmed. 880 F.3d 1089 (CA9 2018). Applying Circuit precedent, see Evich v. Morris, 819 F.2d 256, 258–259 (CA9 1987), the Court of Appeals held that punitive damages are available for unseaworthi- ness claims. 880 F.3d, at 1096. This holding reaffirmed a division of authority between the Circuits. Compare McBride v. Estis Well Serv., L. L. C., 768 F.3d 382, 391 (CA5 2014) (en banc) (punitive damages are not recover- able), and Horsley v. Mobil Oil Corp., 15 F.3d 200, 203 (CA1 1994) (same), with Self v. Great Lakes Dredge & 10 DUTRA GROUP v. BATTERTON Opinion of the Court Dock Co., 832 F.2d 1540, 1550 (CA11 1987) (“Punitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seawor- thy ship . . .”). We granted certiorari to resolve this divi- sion. 586 U. S. ___ (2018). III Our resolution of this question is governed by our deci- sions in Miles and Atlantic Sounding. Miles establishes that we “should look primarily to . . . legislative enact- ments for policy guidance,” while recognizing that we “may supplement these statutory remedies where doing so would achieve the uniform vindication” of the policies served by the relevant statutes. 498 U.S., at 27. In At- lantic Sounding, we allowed recovery of punitive damages, but we justified our departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and cure. 557 U.S., at 411–414 (discussing cases of piracy and maintenance and cure awarding dam- ages with punitive components). We were explicit that our decision represented a gloss on Miles rather than a depar- ture from it. Atlantic Sounding, supra, at 420 (“The rea- soning of Miles remains sound”). And we recognized the importance of viewing each claim in its proper historical context. “ ‘[R]emedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different princi- ples and procedures.’ ” 557 U.S., at 423. In accordance with these decisions, we consider here whether punitive damages have traditionally been awarded for claims of unseaworthiness and whether conformity with parallel statutory schemes would require such dam- ages. Finally, we consider whether we are compelled on policy grounds to allow punitive damages for unseawor- thiness claims. Cite as: 588 U. S. ____ (2019) 11 Opinion of the Court A For claims of unseaworthiness, the overwhelming his- torical evidence suggests that punitive damages are not available. Batterton principally relies on two cases to establish that punitive damages were traditionally avail- able for breach of the duty of seaworthiness. Upon close inspection, neither supports this argument. The Rolph, 293 F. 269, 271 (ND Cal. 1923), involved a mate who brutally beat members of the crew, rendering one seaman blind and leaving another with impaired hearing. The central question in the case was not the form of damages, but rather whether the viciousness of the mate rendered the vessel unseaworthy. The Rolph, 299 F. 52, 54 (CA9 1924). The court concluded that the master, by staffing the vessel with such an unsuitable officer, had rendered it unseaworthy. Id., at 55. To the extent the court described the basis for the damages awarded, it explained that the judgment was supported by testimony as to “the expectation of life and earnings of these men.” 293 F., at 272. And the Court of Appeals discussed only the seamen’s entitlement “to recover an indemnity” for their injuries. 299 F., at 56. These are discussions of compensatory damages—nowhere does the court speak in terms of an exemplary or punitive award.6 The Noddleburn, 28 F. 855, 857–858 (Ore. 1886), in- volved an injury to a British seaman serving on a British vessel and was decided under English law. The plaintiff in the case was injured when he fell to the deck after being —————— 6 Even if this case did involve a sub silentio punitive award, we share the Fifth Circuit’s reluctance to “rely on one dust-covered case to establish that punitive damages were generally available in unseawor- thiness cases.” McBride v. Estis Well Serv., L. L. C., 768 F.3d 382, 397 (2014) (Clement, J., concurring). Absent a clear historical pattern, Miles v. Apex Marine Corp., 498 U.S. 19 (1990), commands us to seek conformity with the policy preferences the political branches have expressed in legislation. 12 DUTRA GROUP v. BATTERTON Opinion of the Court ordered aloft and stepping on an inadequately secured line. Id., at 855. After the injury, the master neglected the man’s wounds, thinking the injury a mere sprain. Id., at 856. The leg failed to heal and the man had to insist on being discharged to a hospital, where he learned that he would be permanently disabled. Ibid. As damages, the court awarded him accrued wages, as well as $1,000 to compensate for the loss in future earnings from his dis- ability and $500 for his pain and suffering. Id., at 860. But these are purely compensatory awards—the only discus- sion of exemplary damages comes at the very close of the opinion, and it is clear that they were considered because of the master’s failure to provide maintenance and cure. Ibid. (discussing additional award “in consideration of the neglect and indifference with which the libelant was treated by the master after his injury” (emphasis added)). Finally, Batterton points to two other cases, The City of Carlisle, 39 F. 807 (Ore. 1889), and The Troop, 118 F. 769 (Wash. 1902). But these cases, like The Noddleburn, both involve maintenance and cure claims that rest on the willful failure of the master and mate to provide proper care for wounded sailors after they were injured. 39 F., at 812 (“master failed and neglected to procure or provide any medical aid or advice . . . and was contriving and intending to get rid of him as easily as possible”); 118 F., at 771 (assessing damages based on provision of Laws of Oleron requiring maintenance). Batterton characterizes these as unseaworthiness actions on the theory that the seamen could have pursued that claim. But, because courts award damages for the claims a plaintiff actually pleads rather than those he could have brought, these cases are irrelevant. The lack of punitive damages in traditional maritime law cases is practically dispositive. By the time the claim of unseaworthiness evolved to remedy personal injury, punitive damages were a well-established part of the Cite as: 588 U. S. ____ (2019) 13 Opinion of the Court common law. Exxon Shipping, 554 U.S., at 491. Ameri- can courts had awarded punitive (or exemplary) damages from the Republic’s earliest days. See, e.g., Genay v. Nor- ris, 1 S. C. L. 6, 7 (1784); Coryell v. Colbaugh, 1 N. J. L. 77, 78 (1791). And yet, beyond the decisions discussed above, Batterton presents no decisions from the formative years of the personal injury unseaworthiness claim in which exemplary damages were awarded. From this we conclude that, unlike maintenance and cure, unseawor- thiness did not traditionally allow recovery of punitive damages. B In light of this overwhelming historical evidence, we cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress’s clearly expressed policies. Therefore, we must consider the remedies typi- cally recognized for Jones Act claims. The Jones Act adopts the remedial provisions of FELA, and by the time of the Jones Act’s passage, this Court and others had repeatedly interpreted the scope of damages available to FELA plaintiffs. These early decisions held that “[t]he damages recoverable [under FELA] are limited . . . strictly to the financial loss . . . sustained.”7 American R. Co. of P. R. v. Didricksen, 227 U.S. 145, 149 (1913); see also Gulf, C. & S. F. R. Co. v. McGinnis, 228 U.S. 173, 175 (1913) (FELA is construed “only to compensate . . . for the actual pecuniary loss resulting” from the worker’s injury or death); Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 68 (1913) (FELA imposes “a liability for the pecuniary —————— 7 Treatises from the same period lend further support to the view that “in all actions under [FELA], an award of exemplary damages is not permitted.” 2 M. Roberts, Federal Liabilities of Carriers §621, p. 1093 (1918); 1 id., §417, at 708; 5 J. Berryman, Sutherland on Damages §1333, p. 5102 (4th ed. 1916) (FELA “provid[es] compensation for pecuniary loss or damage only”). 14 DUTRA GROUP v. BATTERTON Opinion of the Court damage resulting to [the worker] and for that only”). In one particularly illuminating case, in deciding whether a complaint alleged a claim under FELA or state law, the Court observed that if the complaint “were read as mani- festly demanding exemplary damages, that would point to the state law.” Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352, 354 (1915). And in the years since, Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA. Miller v. Ameri- can President Lines, Ltd., 989 F.2d 1450, 1457 (CA6 1993); Wildman v. Burlington No. R. Co., 825 F.2d 1392, 1395 (CA9 1987); Kozar v. Chesapeake & Ohio R. Co., 449 F.2d 1238, 1243 (CA6 1971). Our early discussions of the Jones Act followed the same practices. We described the Act shortly after its passage as creating “an action for compensatory damages, on the ground of negligence.”8 Peterson, 278 U.S., at 135. And we have more recently observed that the Jones Act “limits recovery to pecuniary loss.” Miles, 498 U.S., at 32. Look- ing to FELA and these decisions, the Federal Courts of Appeals have uniformly held that punitive damages are not available under the Jones Act. McBride, 768 F.3d, at 388 (“[N]o cases have awarded punitive damages under the Jones Act”); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1507, n. 9 (CA5 1995) (en banc); Horsley, 15 F.3d, at 203; Miller, supra, at 1457 (“Punitive damages are not . . . recoverable under the Jones Act”); Kopczynski v. The Jacqueline, 742 F.2d 555, 560 (CA9 1984). Batterton argues that these cases are either inapposite or wrong, but because of the absence of historical evidence to support punitive damages—evidence that was central to —————— 8 We also note that Congress declined to allow punitive damages when it enacted the Death on the High Seas Act. 46 U.S. C. §30303 (allowing “fair compensation for the pecuniary loss sustained” for a death on the high seas). Cite as: 588 U. S. ____ (2019) 15 Opinion of the Court our decision in Atlantic Sounding—we need not reopen this question of statutory interpretation. It is enough for us to note the general consensus that exists in the lower courts and to observe that the position of those courts conforms with the discussion and holding in Miles. Adopt- ing the rule urged by Batterton would be contrary to Miles’s command that federal courts should seek to pro- mote a “uniform rule applicable to all actions” for the same injury, whether under the Jones Act or the general mari- time law. 498 U.S., at 33. C To the extent Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure, we are unpersuaded. In contemporary maritime law, our overriding objective is to pursue the policy expressed in congressional enactments, and because unseaworthiness in its current strict-liability form is our own invention and came after passage of the Jones Act, it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas. See id., at 36 (declining to create remedy “that goes well beyond the limits of Congress’ ordered system of recovery”). We are particularly loath to impose more expansive liabilities on a claim governed by strict liability than Congress has im- posed for comparable claims based in negligence. Ibid. And with the increased role that legislation has taken over the past century of maritime law, we think it wise to leave to the political branches the development of novel claims and remedies. We are also wary to depart from the practice under the Jones Act because a claim of unseaworthiness—more than a claim for maintenance and cure—serves as a duplicate and substitute for a Jones Act claim. The duty of mainte- nance and cure requires the master to provide medical care and wages to an injured mariner in the period after 16 DUTRA GROUP v. BATTERTON Opinion of the Court the injury has occurred. Calmar S. S. Corp., 303 U.S., at 527–528. By contrast, both the Jones Act and unseawor- thiness claims compensate for the injury itself and for the losses resulting from the injury. Peterson, supra, at 138. In such circumstances, we are particularly mindful of the rule that requires us to promote uniformity between mari- time statutory law and maritime common law.9 See Miles, supra, at 27. See also Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978) (declining to recognize loss-of- society damages under general maritime law because that would “rewrit[e the] rules that Congress has affirmatively and specifically enacted”). Unlike a claim of maintenance and cure, which addresses a situation where the vessel owner and master have “just about every economic incentive to dump an injured sea- man in a port and abandon him to his fate,” in the unsea- worthiness context the interests of the owner and mariner are more closely aligned. McBride, supra, at 394, n. 12 (Clement, J., concurring). That is because there are signif- —————— 9 The dissent, post at 9, and n. 7 (opinion of GINSBURG, J.), suggests that because of the existing differences between a Jones Act claim and an unseaworthiness claim, recognizing punitive damages would not be a cause of disparity. But, as the dissent acknowledges, much of the expanded reach of the modern unseaworthiness doctrine can be at- tributed to innovations made by this Court following the enactment of the Jones Act. See post at 8, and n. 6; supra, at 7–8. Although Batter- ton and the dissent would continue this evolution by recognizing damages previously unavailable, Miles dictates that such innovation is the prerogative of the political branches, our past expansion of the unseaworthiness doctrine notwithstanding. Of course, Miles recognized that the general maritime law need not be static. For example, our decision in Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970), smoothed a disjunction created by the imperfect alignment of statutory claims with past decisions limiting maritime claims for wrongful death. But when there is no disjunc- tion—as here, where traditional remedies align with modern statutory remedies—we are unwilling to endorse doctrinal changes absent legislative changes. Cite as: 588 U. S. ____ (2019) 17 Opinion of the Court icant economic incentives prompting owners to ensure that their vessels are seaworthy. Most obviously, an owner who puts an unseaworthy ship to sea stands to lose the ship and the cargo that it carries. And if a vessel’s unseaworthiness threatens the crew or cargo, the owner risks losing the protection of his insurer (who may not cover losses incurred by the owner’s negligence) and the work of the crew (who may refuse to serve on an unsea- worthy vessel). In some instances, the vessel owner may even face criminal penalties. See, e.g., 46 U.S. C. §10908. Allowing punitive damages on unseaworthiness claims would also create bizarre disparities in the law. First, due to our holding in Miles, which limited recovery to compen- satory damages in wrongful-death actions, a mariner could make a claim for punitive damages if he was injured onboard a ship, but his estate would lose the right to seek punitive damages if he died from his injuries. Second, because unseaworthiness claims run against the owner of the vessel, the ship’s owner could be liable for punitive damages while the master or operator of the ship—who has more control over onboard conditions and is best positioned to minimize potential risks—would not be liable for such damages under the Jones Act. See Sieracki, 328 U.S., at 100 (The duty of seaworthiness is “peculiarly and exclusively the obligation of the owner. It is one he cannot delegate”). Finally, because “[n]oncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries,” Exxon Shipping, 554 U.S., at 497, allow- ing punitive damages would place American shippers at a significant competitive disadvantage and would discour- age foreign-owned vessels from employing American sea- men. See Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat’l L. 391, 396, n. 24 (2004) (listing civil-law nations that restrict private plaintiffs to compensatory damages). This would frustrate another 18 DUTRA GROUP v. BATTERTON Opinion of the Court “fundamental interest” served by federal maritime juris- diction: “the protection of maritime commerce.” Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 25 (2004) (internal quotation marks omitted; emphasis deleted). Against this, Batterton points to the maritime doctrine that encourages special solicitude for the welfare of sea- men. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. See, e.g., Harden, 11 F. Cas., at 485; Brown, 4 F. Cas., at 409. The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine’s apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as depend- ent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law. It is not suffi- cient to overcome the weight of authority indicating that punitive damages are unavailable. IV Punitive damages are not a traditional remedy for un- seaworthiness. The rule of Miles—promoting uniformity in maritime law and deference to the policies expressed in the statutes governing maritime law—prevents us from recognizing a new entitlement to punitive damages where none previously existed. We hold that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Cite as: 588 U. S. ____ (2019) 19 Opinion of the Court We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. ____ (2019) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 18–266 _________________ THE DUTRA GROUP, PETITIONER v.

By granting federal courts jurisdiction over maritime and admiralty cases, the Constitution implicitly directs federal courts sitting in admiralty to proceed “in the man- ner of a common law court.” Exxon Thus, where Congress has not prescribed specific rules, federal courts must develop the “amalgam of traditional common-law rules, modifica- tions of those rules, and newly created rules” that forms the general maritime East River S. S. Corp. v. Transamerica Delaval Inc., But maritime law is no longer solely the province of the Federal Judiciary. “Congress and the States have legis- lated extensively in these areas.” When exercising its inher- ent common-law authority, “an admiralty court should look primarily to these legislative enactments for policy guidance.” We may depart from the policies found in the statutory scheme in discrete instances based on long- established history, see, e.g., Atlantic Co. v. Townsend, but we do so 2 DUTRA GROUP v. BATTERTON Opinion of the Court cautiously in light of Congress’s persistent pursuit of “uniformity in the exercise of admiralty jurisdiction.” ). This case asks whether a mariner may recover punitive damages on a claim that he was injured as a result of the unseaworthy condition of the vessel. We have twice con- fronted similar questions in the past several decades, and our holdings in both cases were based on the particular claims involved. In which concerned a wrongful- death claim under the general maritime law, we held that recovery was limited to pecuniary damages, which did not include loss of And in Atlantic after examining centuries of relevant case law, we held that punitive damages are not categorically barred as part of the award on the traditional maritime claim of maintenance and Here, because there is no historical basis for allowing punitive damages in unseaworthiness actions, and in order to promote uniformity with the way courts have applied parallel statutory causes of action, we hold that punitive damages remain unavailable in unseaworthiness actions. I In order to determine the remedies for unseaworthiness, we must consider both the heritage of the cause of action in the common law and its place in the modern statutory framework. A The seaman’s right to recover damages for personal injury on a claim of unseaworthiness originates in the admiralty court decisions of the 19th century. At the time, “seamen led miserable lives.” D. Robertson, S. Friedell, & M. Sturley, Admiralty and Maritime Law in the United States 163 Maritime law was largely judge- Cite as: 588 U. S. (2019) 3 Opinion of the Court made, and seamen were viewed as “emphatically the wards of the admiralty.” v. Gordon, 11 F. Cas. 485 (No. 6,047) (CC Me. 1823). In that era, the pri- mary responsibility for protecting seamen lay in the courts, which saw mariners as “peculiarly entitled to”— and particularly in need of—judicial protection “against the effects of the superior skill and shrewdness of masters and owners of ships.” (No. 2,018) (CC Mass. 1836) (Story, J.).1 Courts of admiralty saw it as their duty not to be “con- fined to the mere dry and positive rules of the common law” but to “act upon the enlarged and liberal jurispru- dence of courts of equity; and, in short, so far as their powers extend[ed], they act[ed] as courts of equity.” This Court interpreted the Constitution’s grant of admi- ralty jurisdiction to the Federal Judiciary as “the power to dispose of [a case] as justice may require.” The Reso- lute, Courts used this power to protect seamen from injury primarily through two causes of action. The first, mainte- nance and cure, has its roots in the medieval and renais- sance law codes that form the ancient foundation of mari- time common 2 The duty of maintenance and cure —————— 1 Riding circuit, Justice Story described mariners in markedly pater- nalistic terms: “Seamen are a class of persons remarkable for their rashness, thoughtlessness and improvidence. They are generally necessitous, ignorant of the nature and extent of their own rights and privileges, and for the most part incapable of duly appreciating their value. They combine, in a singular manner, the apparent anomalies of gallantry, extravagance, profusion in expenditure, indifference to the future, credulity, which is easily won, and confidence, which is readily sur- prised.” 4 F. Cas., at 2 A right resembling maintenance and cure appears in the Laws of Oleron, promulgated by Eleanor of Aquitaine around 1160, in the 13th- century Laws of Wisbuy, in the Laws of the Hanse Towns, published in 1597, and in the Marine Ordinances of Louis XIV, published in 1681. 4 DUTRA GROUP v. BATTERTON Opinion of the Court requires a ship’s master “to provide food, lodging, and medical services to a seaman injured while serving the ship.” 441 (2001). This duty, “which arises from the contract of employment, does not rest upon negligence or culpability on the part of the owner or master, nor is it restricted to those cases where the seaman’s employment is the cause of the injury or illness.” Calmar S. S. Corp. v. Taylor, 303 U.S. 525, 5 (1938) (citations omitted). The second claim, unseaworthiness, is a much more recent development and grew out of causes of action unre- lated to personal injury. In its earliest forms, an unsea- worthiness claim gave sailors under contract to sail on a ship the right to collect their wages even if they had re- fused to board an unsafe vessel after discovering its condi- tion. See, e.g., (No. 3,930) (Pa. 1789); 667 (No. 11,7) (Pa. 1789). Similarly, unseaworthiness was a defense to criminal charges against seamen who refused to obey a ship master’s orders. See, e.g., United F. Cas. 210, (No. 15,906) (CC Mass. 1855); United 874–875 (No. 14,470) (CC Mass. 1834). A claim of unseaworthiness could also be asserted by a shipper to recover damages or by an insurer to deny coverage when the poor condition of the ship resulted in damage to or loss of the cargo. See The Caledonia, (cataloging cases). Only in the latter years of the 19th century did unsea- worthiness begin a long and gradual evolution toward —————— See (collecting sources). The relevant passages are the Laws of Oleron, Arts. VI and –1; the Laws of Wisbuy, Arts. XI, XIX, and –1192; the Laws of the Hanse Towns, Arts. XXXIX and ; the Marine Ordinances of Louis XIV, Tit. IV, Arts. XI and XII, 30 F. Cas., at 1209. Cite as: 588 U. S. (2019) 5 Opinion of the Court remedying personal injury. Courts began to extend the cases about refusals to serve to allow recovery for mari- ners who were injured because of the unseaworthy condi- tion of the vessel on which they had served.3 These early cases were sparse, and they generally allowed recovery only when a vessel’s owner failed to exercise due diligence to ensure that the ship left port in a seaworthy condition. See, e.g., The Robert C. McQuillen, 686–687 (Conn. 1899); The Lizzie Frank, (SD Ala. 1887); The Tammerlane, Unseaworthiness remained a suspect basis for personal injury claims until 1903, when, in dicta, this Court con- cluded that “the vessel and her owner are liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship.” The Osceola, 189 U.S. 158, (1903). Although this was the first recogni- tion of unseaworthiness as a personal injury claim in this Court, we took pains to note that the claim was strictly cabined. Some of the limitations on recovery were imported from the common The fellow-servant doc- trine, in particular, prohibited recovery when an employee suffered an injury due to the negligent act of another employee without negligence on the part of the employer. ; see, e.g., The Sachem, (deny- —————— 3 Most of these cases allowed recovery for personal injury in “errone- ous reliance” on certain passages in (No. 3,930) (Pa. 1789). Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39 Cornell L. Q. 381, 390 (19) (Tetreault). These cases misread The Cyrus as resting on an implied warranty of seaworthiness. Tetreault 390. But The Cyrus is more fairly read to turn on a theory of true implied condition. While a warranty would provide a basis for damages if the breach caused an injury, an implied condition would only allow the mariner to escape performance without surrendering the benefit of the contract. In other words, “[t]he mani- fest unseaworthiness of the vessel at the commencement of the voyage would excuse non-performance by the mariners but did not constitute a basis for damages.” Tetreault 390. 6 DUTRA GROUP v. BATTERTON Opinion of the Court ing recovery based on fellow-servant doctrine). Because a claimant had to show that he was injured by some aspect of the ship’s condition that rendered the vessel unseawor- thy, a claim could not prevail based on “the negligence of the master, or any member of the crew.” 4 The Osceola, ; see also The City of Alexandria, (SDNY 1883) (no recovery based on negligence that does not render vessel unseaworthy). Instead, a seaman had to show that the owner of the vessel had failed to exercise due diligence in ensuring the ship was in seaworthy condi- tion. See generally 12–14 (CA2 1955) (Harlan, J.) (cataloging evolution of the claim). B In the early 20th century, then, under “the general maritime law a vessel and her owner were liable to an indemnity for injuries received by a seaman in conse- quence of the unseaworthiness of the ship and her appli- ances; but a seaman was not allowed to recover an indem- nity for injuries sustained through the negligence of the master or any member of the crew.” Pacific S. S. Co. v. 8 U.S. 130, ; see also v. S. S. “Pinar Del Rio,” 7 U.S. 151, (vessel was not unseaworthy when mate negligently selected defective rope but sound rope was available on board). Because of these severe limitations on recovery, “the seaman’s right to recover damages for injuries caused by unseaworthiness —————— 4 To be sure, in some instances the concept of “unseaworthiness” ex- panded to embrace conditions that resulted from the negligence of fellow servants, see, e.g., Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922) (vessel was rendered unseaworthy when it left port with gasoline in a container labeled “coal oil”); see also G. Robinson, Handbook of Admiralty Law in the United States p. 305–307 (1st ed. 1939) (collecting cases). But it was only after the passage of the Jones Act that negligence by a fellow mariner provided a reliable basis for recovery. See Part I–B, infra. Cite as: 588 U. S. (2019) 7 Opinion of the Court of the ship was an obscure and relatively little used rem- edy.” G. Gilmore & C. Black, The Law of Admiralty p. 383 (2d ed. 1975) (Gilmore & Black). Tremendous shifts in mariners’ rights took place be- tween 1920 and 1950. First, during and after the First World War, Congress enacted a series of laws regulating maritime liability culminating in the Merchant Marine Act of 1920, which codified the rights of injured mariners and created new statutory claims that were freed from many of the common-law limitations on recovery. The Jones Act provides injured seamen with a cause of action and a right to a jury. 46 U.S. C. Rather than create a new structure of substantive rights, the Jones Act incorporated the rights provided to railway workers under the Federal Employers’ Liability Act (FELA), 45 U.S. C. et seq. 46 U.S. C. In the 30 years after the Jones Act’s passage, “the Act was the vehicle for almost all seamen’s personal injury and death actions.” Gilmore & Black at 3. But the Jones Act was overtaken in the 1950s by the second fundamental change in personal injury maritime claims—and it was this Court, not Congress, that played the leading role. In a pair of decisions in the late 1940s, the Court transformed the old claim of unseaworthiness, which had demanded only due diligence by the vessel owner, into a strict-liability claim. In the Court stated that “the exercise of due diligence does not relieve the owner of his obligation” to provide a seaworthy ship and, in the same ruling, held that the fellow-servant doctrine did not provide a defense. Mahnich’s interpreta- tion of the early cases may have been suspect, see Tetreault –398 (Mahnich rests on “startling misstate- ment” of relevant precedents), but its assertion triggered a sea-change in maritime personal injury. Less than two years later, we affirmed that the duty of seaworthiness 8 DUTRA GROUP v. BATTERTON Opinion of the Court was “essentially a species of liability without fault neither limited by conceptions of negligence nor contrac- tual in character. It is a form of absolute duty owing to all within the range of its humanitarian policy.” Seas Ship- ping (citations omitted). From Mahnich forward, “the decisions of this Court have undeviatingly reflected an understanding that the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care.” As a result of Mah- nich and Sieracki, between the 1950s and 1970s “the unseaworthiness count [was] the essential basis for recov- ery with the Jones Act count preserved merely as a jury- getting device.”5 Gilmore & Black at 3–328. The shifts in plaintiff preferences between Jones Act and unseaworthiness claims were possible because of the significant overlap between the two causes of action. See at 383. One leading treatise goes so far as to describe the two claims as “alternative ‘grounds’ of recov- ery for a single cause of action.” 2 R. & M. Norris, The Law of Seamen p. 30–369 (5th ed. 2003). The two claims are so similar that, immediately after the Jones Act’s passage, we held that plaintiffs could not submit both to a jury. at 156–157 (“Sea- men may invoke, at their election, the relief accorded by the old rules against the ship, or that provided by the new against the employer. But they may not have the benefit of both”). We no longer require such election. See McAl- (1958). But a plaintiff still cannot duplicate his recovery —————— 5 The decline of Jones Act claims was arrested, although not reversed, by our holding that some negligent actions on a vessel may create Jones Act liability without rendering the vessel unseaworthy. See Usner v. Luckenbach Overseas Corp., ; see also 1B Benedict on Admiralty p. 3–35 (7th rev. ed. 2018). Cite as: 588 U. S. (2019) 9 Opinion of the Court by collecting full damages on both claims because, “whether or not the seaman’s injuries were occasioned by the un- seaworthiness of the vessel or by the negligence of the master or members of the crew, there is but a single wrongful invasion of his primary right of bodily safety and but a single legal wrong.” 8 U.S., ; see also 2 30:90. II Christopher Batterton worked as a deckhand and crew member on vessels owned and operated by the Dutra Group. According to Batterton’s complaint, while working on a scow near Newport Beach, California, Batterton was injured when his hand was caught between a bulkhead and a hatch that blew open as a result of unventilated air accumulating and pressurizing within the compartment. Batterton sued Dutra and asserted a variety of claims, including negligence, unseaworthiness, maintenance and cure, and unearned wages. He sought to recover general and punitive damages. Dutra moved to strike Batterton’s claim for punitive damages, arguing that they are not available on claims for unseaworthiness. The District Court denied Dutra’s motion, (CD Cal., Dec. 15, 2014), but agreed to certify an interlocutory ap- peal on the question, (CD Cal., Feb. 6, 2015). The Court of Appeals affirmed. (CA9 2018). Applying Circuit precedent, see the Court of Appeals held that punitive damages are available for unseaworthi- ness This holding reaffirmed a division of authority between the Circuits. Compare (CA5 2014) (en banc) (punitive damages are not recover- able), and (CA1 1994) (same), with Self v. Great Lakes Dredge & 10 DUTRA 0 (“Punitive damages should be available in cases where the shipowner willfully violated the duty to maintain a safe and seawor- thy ship”). We granted certiorari to resolve this divi- sion. 586 U. S. (2018). III Our resolution of this question is governed by our deci- sions in and Atlantic establishes that we “should look primarily to legislative enact- ments for policy guidance,” while recognizing that we “may supplement these statutory remedies where doing so would achieve the uniform vindication” of the policies served by the relevant 498 U.S., at In At- lantic we allowed recovery of punitive damages, but we justified our departure from the statutory remedial scheme based on the established history of awarding punitive damages for certain maritime torts, including maintenance and –414 (discussing cases of piracy and maintenance and cure awarding dam- ages with punitive components). We were explicit that our decision represented a gloss on rather than a depar- ture from it. Atlantic (“The rea- soning of remains sound”). And we recognized the importance of viewing each claim in its proper historical context. “ ‘[R]emedies for negligence, unseaworthiness, and maintenance and cure have different origins and may on occasion call for application of slightly different princi- ples and procedures.’ ” In accordance with these decisions, we consider here whether punitive damages have traditionally been awarded for claims of unseaworthiness and whether conformity with parallel statutory schemes would require such dam- ages. Finally, we consider whether we are compelled on policy grounds to allow punitive damages for unseawor- thiness Cite as: 588 U. S. (2019) 11 Opinion of the Court A For claims of unseaworthiness, the overwhelming his- torical evidence suggests that punitive damages are not available. Batterton principally relies on two cases to establish that punitive damages were traditionally avail- able for breach of the duty of seaworthiness. Upon close inspection, neither supports this argument. The Rolph, 1 involved a mate who brutally beat members of the crew, rendering one seaman blind and leaving another with impaired hearing. The central question in the case was not the form of damages, but rather whether the viciousness of the mate rendered the vessel unseaworthy. The Rolph, The court concluded that the master, by staffing the vessel with such an unsuitable officer, had rendered it unseaworthy. To the extent the court described the basis for the damages awarded, it explained that the judgment was supported by testimony as to “the expectation of life and earnings of these men.” 293 F., at 2. And the Court of Appeals discussed only the seamen’s entitlement “to recover an indemnity” for their These are discussions of compensatory damages—nowhere does the court speak in terms of an exemplary or punitive award.6 The Noddleburn, in- volved an injury to a British seaman serving on a British vessel and was decided under English The plaintiff in the case was injured when he fell to the deck after being —————— 6 Even if this case did involve a sub silentio punitive award, we share the Fifth Circuit’s reluctance to “rely on one dust-covered case to establish that punitive damages were generally available in unseawor- thiness cases.” (2014) (Clement, J., concurring). Absent a clear historical pattern, v. Apex Marine Corp., commands us to seek conformity with the policy preferences the political branches have expressed in legislation. 12 DUTRA GROUP v. BATTERTON Opinion of the Court ordered aloft and stepping on an inadequately secured line. After the injury, the master neglected the man’s wounds, thinking the injury a mere sprain. at 856. The leg failed to heal and the man had to insist on being discharged to a hospital, where he learned that he would be permanently disabled. As damages, the court awarded him accrued wages, as well as $1,000 to compensate for the loss in future earnings from his dis- ability and $500 for his pain and suffering. But these are purely compensatory awards—the only discus- sion of exemplary damages comes at the very close of the opinion, and it is clear that they were considered because of the master’s failure to provide maintenance and (discussing additional award “in consideration of the neglect and indifference with which the libelant was treated by the master after his injury” (emphasis added)). Finally, Batterton points to two other cases, The City of Carlisle, and The Troop, (Wash. 1902). But these cases, like The Noddleburn, both involve maintenance and cure claims that rest on the willful failure of the master and mate to provide proper care for wounded sailors after they were injured. 39 F., at 812 (“master failed and neglected to procure or provide any medical aid or advice and was contriving and intending to get rid of him as easily as possible”); 118 F., at 771 (assessing damages based on provision of Laws of Oleron requiring maintenance). Batterton characterizes these as unseaworthiness actions on the theory that the seamen could have pursued that claim. But, because courts award damages for the claims a plaintiff actually pleads rather than those he could have brought, these cases are irrelevant. The lack of punitive damages in traditional maritime law cases is practically dispositive. By the time the claim of unseaworthiness evolved to remedy personal injury, punitive damages were a well-established part of the Cite as: 588 U. S. (2019) 13 Opinion of the Court common Exxon 5 U.S., at 491. Ameri- can courts had awarded punitive (or exemplary) damages from the Republic’s earliest days. See, e.g., Genay v. Nor- ris, 1 S. C. L. 6, 7 (1784); Coryell v. Colbaugh, 1 N. J. L. 77, 78 (1791). And yet, beyond the decisions discussed above, Batterton presents no decisions from the formative years of the personal injury unseaworthiness claim in which exemplary damages were awarded. From this we conclude that, unlike maintenance and cure, unseawor- thiness did not traditionally allow recovery of punitive damages. B In light of this overwhelming historical evidence, we cannot sanction a novel remedy here unless it is required to maintain uniformity with Congress’s clearly expressed policies. Therefore, we must consider the remedies typi- cally recognized for Jones Act The Jones Act adopts the remedial provisions of FELA, and by the time of the Jones Act’s passage, this Court and others had repeatedly interpreted the scope of damages available to FELA plaintiffs. These early decisions held that “[t]he damages recoverable [under FELA] are limited strictly to the financial loss sustained.”7 American R. Co. of P. 2 U.S. 145, ; see also Gulf, C. & S. F. R. (FELA is construed “only to compensate for the actual pecuniary loss resulting” from the worker’s injury or death); Michigan Central R. Co. v. Vreeland, 2 U.S. 59, 68 (FELA imposes “a liability for the pecuniary —————— 7 Treatises from the same period lend further support to the view that “in all actions under [FELA], an award of exemplary damages is not permitted.” 2 M. Roberts, Federal Liabilities of Carriers p. 1093 (1918); 1 at 708; 5 J. Berryman, Sutherland on Damages p. 5102 (4th ed. 1916) (FELA “provid[es] compensation for pecuniary loss or damage only”). 14 DUTRA GROUP v. BATTERTON Opinion of the Court damage resulting to [the worker] and for that only”). In one particularly illuminating case, in deciding whether a complaint alleged a claim under FELA or state law, the Court observed that if the complaint “were read as mani- festly demanding exemplary damages, that would point to the state ” Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352, 3 (1915). And in the years since, Federal Courts of Appeals have unanimously held that punitive damages are not available under FELA. (CA6 1993); 1395 ; Kozar v. Chesapeake & Ohio R. Co., 449 F.2d 1238, 1243 Our early discussions of the Jones Act followed the same practices. We described the Act shortly after its passage as creating “an action for compensatory damages, on the ground of negligence.”8 8 U.S., at 135. And we have more recently observed that the Jones Act “limits recovery to pecuniary loss.” Look- ing to FELA and these decisions, the Federal Courts of Appeals have uniformly held that punitive damages are not available under the Jones Act. 768 F.3d, at 388 (“[N]o cases have awarded punitive damages under the Jones Act”); Guevara v. Maritime Overseas Corp., 59 F.3d 6, 1507, n. 9 (CA5 1995) (en banc); Horsley, 15 F.3d, at ; at (“Punitive damages are not recoverable under the Jones Act”); Kopczynski v. The Jacqueline, Batterton argues that these cases are either inapposite or wrong, but because of the absence of historical evidence to support punitive damages—evidence that was central to —————— 8 We also note that Congress declined to allow punitive damages when it enacted the Death on the High Seas Act. 46 U.S. C. (allowing “fair compensation for the pecuniary loss sustained” for a death on the high seas). Cite as: 588 U. S. (2019) 15 Opinion of the Court our decision in Atlantic —we need not reopen this question of statutory interpretation. It is enough for us to note the general consensus that exists in the lower courts and to observe that the position of those courts conforms with the discussion and holding in Adopt- ing the rule urged by Batterton would be contrary to ’s command that federal courts should seek to pro- mote a “uniform rule applicable to all actions” for the same injury, whether under the Jones Act or the general mari- time C To the extent Batterton argues that punitive damages are justified on policy grounds or as a regulatory measure, we are unpersuaded. In contemporary maritime law, our overriding objective is to pursue the policy expressed in congressional enactments, and because unseaworthiness in its current strict-liability form is our own invention and came after passage of the Jones Act, it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas. See at 36 (declining to create remedy “that goes well beyond the limits of Congress’ ordered system of recovery”). We are particularly loath to impose more expansive liabilities on a claim governed by strict liability than Congress has im- posed for comparable claims based in negligence. And with the increased role that legislation has taken over the past century of maritime law, we think it wise to leave to the political branches the development of novel claims and remedies. We are also wary to depart from the practice under the Jones Act because a claim of unseaworthiness—more than a claim for maintenance and cure—serves as a duplicate and substitute for a Jones Act claim. The duty of mainte- nance and cure requires the master to provide medical care and wages to an injured mariner in the period after 16 DUTRA GROUP v. BATTERTON Opinion of the Court the injury has occurred. Calmar S. S. Corp., 303 U.S., at 5–528. By contrast, both the Jones Act and unseawor- thiness claims compensate for the injury itself and for the losses resulting from the injury. In such circumstances, we are particularly mindful of the rule that requires us to promote uniformity between mari- time statutory law and maritime common 9 See at See also Mobil Oil (declining to recognize loss-of- society damages under general maritime law because that would “rewrit[e the] rules that Congress has affirmatively and specifically enacted”). Unlike a claim of maintenance and cure, which addresses a situation where the vessel owner and master have “just about every economic incentive to dump an injured sea- man in a port and abandon him to his fate,” in the unsea- worthiness context the interests of the owner and mariner are more closely aligned. (Clement, J., concurring). That is because there are signif- —————— 9 The dissent, post at 9, and n. 7 (opinion of GINSBURG, J.), suggests that because of the existing differences between a Jones Act claim and an unseaworthiness claim, recognizing punitive damages would not be a cause of disparity. But, as the dissent acknowledges, much of the expanded reach of the modern unseaworthiness doctrine can be at- tributed to innovations made by this Court following the enactment of the Jones Act. See post at 8, and n. 6; at 7–8. Although Batter- ton and the dissent would continue this evolution by recognizing damages previously unavailable, dictates that such innovation is the prerogative of the political branches, our past expansion of the unseaworthiness doctrine notwithstanding. Of course, recognized that the general maritime law need not be static. For example, our decision in smoothed a disjunction created by the imperfect alignment of statutory claims with past decisions limiting maritime claims for wrongful death. But when there is no disjunc- tion—as here, where traditional remedies align with modern statutory remedies—we are unwilling to endorse doctrinal changes absent legislative changes. Cite as: 588 U. S. (2019) 17 Opinion of the Court icant economic incentives prompting owners to ensure that their vessels are seaworthy. Most obviously, an owner who puts an unseaworthy ship to sea stands to lose the ship and the cargo that it carries. And if a vessel’s unseaworthiness threatens the crew or cargo, the owner risks losing the protection of his insurer (who may not cover losses incurred by the owner’s negligence) and the work of the crew (who may refuse to serve on an unsea- worthy vessel). In some instances, the vessel owner may even face criminal penalties. See, e.g., 46 U.S. C. Allowing punitive damages on unseaworthiness claims would also create bizarre disparities in the First, due to our holding in which limited recovery to compen- satory damages in wrongful-death actions, a mariner could make a claim for punitive damages if he was injured onboard a ship, but his estate would lose the right to seek punitive damages if he died from his Second, because unseaworthiness claims run against the owner of the vessel, the ship’s owner could be liable for punitive damages while the master or operator of the ship—who has more control over onboard conditions and is best positioned to minimize potential risks—would not be liable for such damages under the Jones Act. See Sieracki, 328 U.S., at 100 (The duty of seaworthiness is “peculiarly and exclusively the obligation of the owner. It is one he cannot delegate”). Finally, because “[n]oncompensatory damages are not part of the civil-code tradition and thus unavailable in such countries,” Exxon 5 U.S., at 497, allow- ing punitive damages would place American shippers at a significant competitive disadvantage and would discour- age foreign-owned vessels from employing American sea- men. See Gotanda, Punitive Damages: A Comparative Analysis, 42 Colum. J. Transnat’l L. 396, n. 24 (2004) (listing civil-law nations that restrict private plaintiffs to compensatory damages). This would frustrate another 18 DUTRA GROUP v. BATTERTON Opinion of the Court “fundamental interest” served by federal maritime juris- diction: “the protection of maritime commerce.” Norfolk Southern R. 3 U.S. 14, 25 (2004) (internal quotation marks omitted; emphasis deleted). Against this, Batterton points to the maritime doctrine that encourages special solicitude for the welfare of sea- men. But that doctrine has its roots in the paternalistic approach taken toward mariners by 19th century courts. See, e.g., ; 4 F. Cas., at The doctrine has never been a commandment that maritime law must favor seamen whenever possible. Indeed, the doctrine’s apex coincided with many of the harsh common-law limitations on recovery that were not set aside until the passage of the Jones Act. And, while sailors today face hardships not encountered by those who work on land, neither are they as isolated nor as depend- ent on the master as their predecessors from the age of sail. In light of these changes and of the roles now played by the Judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime It is not suffi- cient to overcome the weight of authority indicating that punitive damages are unavailable. IV Punitive damages are not a traditional remedy for un- seaworthiness. The rule of —promoting uniformity in maritime law and deference to the policies expressed in the statutes governing maritime law—prevents us from recognizing a new entitlement to punitive damages where none previously existed. We hold that a plaintiff may not recover punitive damages on a claim of unseaworthiness. Cite as: 588 U. S. (2019) 19 Opinion of the Court We reverse the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 588 U. S. (2019) 1 GINSBURG, J., dissenting SUPREME COURT OF THE UNITED STATES No. 18–266 THE DUTRA GROUP, PETITIONER v.

Justice Ginsburg

dissenting

Dutra Group v. Batterton

2019-06-24

https://www.courtlistener.com/opinion/4632239/dutra-group-v-batterton/

https://www.courtlistener.com/api/rest/v3/clusters/4632239/

2018-060

In Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), the Court recognized that punitive damages normally are available in maritime cases. Id., at 489–490, 502, 508, n. 21. Relying on Miles v. Apex Marine Corp., 498 U.S. 19 (1990), the Court today holds that unseaworthiness claims are an exception to that general rule. Respondent Chris- topher Batterton, defending the Ninth Circuit’s decision in his favor, relies on the Court’s more recent decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009). In my view, the Ninth Circuit correctly determined that Atlantic Sounding is the controlling precedent. See 880 F.3d 1089, 1095–1096 (2018) (case below). I would there- fore affirm the judgment of the Court of Appeals, cogently explained in Senior Circuit Judge Kleinfeld’s opinion. I Batterton was employed as a deckhand for petitioner The Dutra Group, a dredging and marine construction company. As Batterton worked on a Dutra vessel, fellow crewmembers pumped pressurized air into a below-decks compartment. The build up of pressurized air blew open a hatch cover that crushed Batterton’s hand, permanently disabling him. The accident could have been prevented, 2 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting Batterton alleges, by a valve to vent excess air from the compartment, something to hold the hatch cover open, or simply better warnings or supervision. Batterton filed a civil action asserting one claim of negligence under the Jones Act1 and two claims under general maritime law: one for breach of the duty to pro- vide a seaworthy vessel and one for breach of the duty to provide maintenance and cure.2 As to his unseaworthi- ness claim, Batterton sought punitive damages, alleging that Dutra’s breach was wanton and willful. Dutra moved to strike or dismiss Batterton’s punitive damages request. The District Court denied the motion, 2014 WL 12538172, *2 (CD Cal. Dec. 15, 2014), and the Ninth Circuit, accepting an interlocutory appeal, affirmed, 880 F.3d 1089. Longstanding Ninth Circuit precedent, the court observed, recognized the availability of punitive damages in seamen’s actions for unseaworthiness. Id., at 1091 (citing Evich v. Morris, 819 F.2d 256, 258 (1987)). Miles, 498 U.S., at 29–33, which held that loss-of-society damages are not available in survivors’ actions for unsea- worthiness resulting in a seaman’s wrongful death, the court observed, did not undermine that precedent. 880 F.3d, at 1093–1096. “Whatever room might [have] be[en] left to support broadening Miles to cover punitive damages” sought by a seaman, the Ninth Circuit said, “was cut off by —————— 1 The Jones Act provides: “A seaman injured in the course of employ- ment or, if the seaman dies from the injury, the personal representative of the seaman[,] may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway em- ployee apply to an action under this section.” 46 U.S. C. §30104. 2 “Maintenance and cure” is the right of “the seaman, ill or injured in the service of the ship without willful misbehavior on his part[ to] wages to the end of the voyage and subsistence, lodging, and medical care to the point where the maximum cure attainable has been reached.” 2 R. Force & M. Norris, The Law of Seamen §26:1, p. 26–4 (5th ed. 2003). Cite as: 588 U. S. ____ (2019) 3 GINSBURG, J., dissenting [this] Court’s decision in Atlantic Sounding,” in which this Court, recognizing that “historically, punitive damages have been available and awarded in general maritime actions,” held that such damages are available in seamen’s suits for maintenance and cure. Id., at 1095. (quoting Atlantic Sounding, 557 U.S., at 407; alteration omitted). Punitive damages, the Ninth Circuit concluded, are simi- larly available when a seaman sues for unseaworthiness under general maritime law. II I turn now to an examination of Miles and Atlantic Sounding closer than the attention accorded those deci- sions by the Court. Miles, decided in 1990, addressed this question: In a wrongful-death action premised on unseaworthiness, may a deceased seaman’s parent recover damages for loss of society? 498 U.S., at 21. As the Court explained in Miles, historically, general maritime law did not recognize a cause of action for wrongful death. Id., at 23 (citing The Harrisburg, 119 U.S. 199 (1886)). But since the late 19th century, every State had adopted a statutory wrongful- death cause of action. Miles, 498 U.S., at 23. And in two statutes, Congress had provided for wrongful-death recov- eries in maritime cases. Ibid. First, the Jones Act, 46 U.S. C. §30104, provided a right of action for the survivor of a seaman killed in the course of his employment. Sec- ond, the Death on the High Seas Act (DOHSA), 46 U.S. C. §30301 et seq., provided a right of action for the survivor of anyone killed “by wrongful act, neglect, or default . . . on the high seas.” §30302; Miles, 498 U.S., at 24. But the Jones Act and DOHSA left some wrongful deaths at sea without a remedy. See Miles, 498 U.S., at 25–26.3 To fill —————— 3 These were the unprovided-for cases: “First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death. Second, DOHSA allowed a remedy for 4 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting gaps in this statutory regime, and in light of legislative abrogation of the common-law disallowance of wrongful- death claims, the Court in Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409 (1970), recognized a general maritime cause of action for the wrongful death of a long- shoreman. See also Miles, 498 U.S., at 26–30 (claim for wrongful death is also available to seamen’s survivors). After recounting this history, the Miles Court addressed the damages relief available for maritime wrongful death. Because “Congress and the States ha[d] legislated exten- sively in” the field of maritime law, the Court stated, “admiralty court[s] should look primarily to these legisla- tive enactments for policy guidance.” Id., at 27. Congress had expressly limited damages recoverable under DOHSA to “pecuniary loss” sustained by the decedent’s survivor. Id., at 31 (citing 46 U.S. C. App. §762, recodified at §30303). And the Jones Act adopted the substantive provisions of the Federal Employers Liability Act, 45 U.S. C. §51 et seq., which the Court construed to confine wrongful-death damages to “pecuniary loss.” Miles, 498 U.S., at 32. The Miles Court reasoned that loss-of-society damages were nonpecuniary, that such damages could not be recovered under DOHSA or the Jones Act, and that it would “be inconsistent with [the Court’s] place in the constitutional scheme . . . to sanction more expansive remedies” under general maritime law. Miles, 498 U. S., —————— death resulting from unseaworthiness on the high seas, but general maritime law did not allow such recovery for a similar death in territo- rial waters. Finally, . . . in those States whose statutes allowed a claim for wrongful death resulting from unseaworthiness, recovery was available for the death of a longshoreman due to unseaworthiness, but not for the death of a Jones Act seaman. This was because wrongful death actions under the Jones Act are limited to negligence, and the Jones Act pre-empts state law remedies for the death or injury of a seaman.” Miles v. Apex Marine Corp., 498 U.S. 19, 26 (1990) (citation omitted). Cite as: 588 U. S. ____ (2019) 5 GINSBURG, J., dissenting at 31–33.4 Some 19 years after Miles, in Atlantic Sounding, this Court held that punitive damages are available in actions for maintenance and cure under general maritime law. 557 U.S., at 408. Atlantic Sounding’s reasoning had four components. First, the Court observed, punitive damages had a long common-law pedigree. Id., at 409–410. Sec- ond, the “general rule that punitive damages were avail- able at common law extended to claims arising under fed- eral maritime law.” Id., at 411; see id., at 411–412. Third, “[n]othing in maritime law undermine[d] the applicability of this general rule in the maintenance and cure context,” notwithstanding slim evidence that punitive damages were historically awarded in maintenance and cure ac- tions. Id., at 412; see id., at 412–415, and n. 4. Finally, neither the Jones Act nor any other statute indicated that Congress sought to displace the presumption that reme- dies generally available under the common law are avail- able for maritime claims. While the Jones Act armed sea- men with a statutory action for negligence attributable to a vessel operator, that remedy, Atlantic Sounding noted, did not curtail pre-existing maritime causes of action and remedies. Id., at 415–418. The Atlantic Sounding Court rejected as “far too broad” the argument that the remedies available under general maritime law were confined to those available under the Jones Act or DOHSA. Id., at 418–419. —————— 4 The Miles Court relied on comparable reasoning in denying the deceased seaman’s estate, which had brought a survival action, the right to recover future earnings. See id., at 33–37. Under “the tradi- tional maritime rule,” “there [wa]s no survival of unseaworthiness claims.” Id., at 34. The Court declined to decide whether to recognize a general maritime survival right, however, because, even if such a right were recognized, it would not support recovery of lost future income. Ibid. This damages limitation followed from the Jones Act, DOHSA, and most States’ laws, which did not permit recovery of such damages. See id., at 35–36. 6 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting The Atlantic Sounding inquiries control this case. As in Atlantic Sounding, “both the general maritime cause of action”—here, unseaworthiness—“and the remedy (puni- tive damages) were well established before the passage of the Jones Act.” 557 U.S., at 420; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 544 (1960); The Osceola, 189 U.S. 158, 175 (1903). And, unlike the maritime wrongful- death action at issue in Miles, Batterton’s claim of unsea- worthiness resulting in personal injury was not created to fill gaps in a statutory scheme. See Atlantic Sounding, 557 U.S., at 420; Miles, 498 U.S., at 27, 36. The damages available for Batterton’s unseaworthiness claim, Atlantic Sounding therefore signals, need not track those available under the Jones Act. See 557 U.S., at 424, n. 12. III Applying Atlantic Sounding’s test, see supra, at 5, puni- tive damages are not categorically barred in unseaworthi- ness actions. Atlantic Sounding itself answers the first two inquiries. See supra, at 5. “Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct.” 557 U.S., at 409; see id., at 409–410. And “[t]he general rule that punitive damages [are] available at common law extended to claims arising under federal maritime law.” Id., at 411; see id., at 411– 412. As next explained, the third and fourth components of Atlantic Sounding’s test are also satisfied. A Atlantic Sounding asks, third, whether anything in maritime law “undermines the applicability [to the mari- time action at issue] of th[e] general rule” that punitive damages are available under general maritime law. Id., at 412. True, there is no evidence that courts awarded punitive damages for unseaworthiness before the mid- 20th century. See ante, at 11–13. But neither is there Cite as: 588 U. S. ____ (2019) 7 GINSBURG, J., dissenting evidence that punitive damages were unavailable in un- seaworthiness actions. Tr. of Oral Arg. 17. Contrary to the Court’s assertion, evidence of the avail- ability of punitive damages for maintenance and cure was not “central to our decision in Atlantic Sounding.” Ante, at 14–15. Far from it. “[A] search for cases in which puni- tive damages were awarded for the willful denial of maintenance and cure . . . yields very little.” Atlantic Sounding, 557 U.S., at 430 (ALITO, J., dissenting). The Court in Atlantic Sounding invoked historical evidence about punitive damages in maintenance and cure actions, “strikingly slim” though it was, id., at 431, only to under- score this point: Without a showing that punitive damages were unavailable, the generally applicable common-law rule allowing punitive damages should not be displaced. See id., at 412–415 (majority opinion). Here, too, the absence of evidence that punitive damages were unavail- able in unseaworthiness cases supports adherence to the general common-law rule permitting punitive damages. B Atlantic Sounding asks fourth: Has Congress “enacted legislation departing from th[e] common-law understand- ing” that punitive damages are generally available? See id., at 415. Dutra contends that unseaworthiness claims and claims under the Jones Act are “simply two paths to compensation for the same injury.” Brief for Petitioner 19–20 (emphasis deleted). Positing that punitive damages are unavailable under the Jones Act,5 Dutra concludes they are likewise unavailable in unseaworthiness suits. Id., at 17. See also ante, at 13–15. Dutra’s argument is unavailing, for the Jones Act does not preclude the award of punitive damages in unseaworthiness cases. —————— 5 This Court has not decided whether punitive damages are available under the Jones Act. See Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 424, n. 12 (2009) (reserving the question). 8 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting As noted, the Jones Act provides a cause of action for a seaman injured by his or her employer’s negligence. 46 U.S. C. §30104. Congress passed the Act “primarily to overrule The Osceola, [189 U.S. 158,] in which this Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negli- gence.” Atlantic Sounding, 557 U.S., at 415. The Jones Act was intended to “enlarge th[e] protection” afforded to seamen, “not to narrow it.” The Arizona v. Anelich, 298 U.S. 110, 123 (1936). Accordingly, the Jones Act did not provide an “exclusive remedy” for seamen’s injuries; in- stead, it “preserve[d]” and supplemented “common-law causes of action.” Atlantic Sounding, 557 U.S., at 416– 417. As Miles itself recognized, the Jones Act “d[id] not disturb seamen’s general maritime claims for injuries resulting from unseaworthiness.” 498 U.S., at 29. When the Jones Act was enacted, unseaworthiness and negligence were “discrete concepts”: Unseaworthiness related “to the structure of the ship and the adequacy of [its] equipment and furnishings,” while negligence con- cerned “the direction and control of operations aboard ship.” G. Gilmore & C. Black, Law of Admiralty §6–3, p. 277 (2d ed. 1975). Because these actions were distinct, it is improbable that, by enacting the Jones Act, Congress meant to limit the remedies available in unseaworthiness cases. Though unseaworthiness and Jones Act negligence now “significant[ly] overlap,” ante, at 8, that overlap re- sulted primarily from mid-20th-century judicial decisions expanding the scope of unseaworthiness liability. See Mitchell, 362 U.S., at 547–550.6 Those decisions do not so —————— 6 In particular, this Court held that a shipowner’s duty to provide a seaworthy vessel was “absolute,” thereby rendering unseaworthiness a strict-liability tort. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94–95 (1946); Mahnich v. Southern S. S. Co., 321 U.S. 96, 100–101 (1944); see 1B Benedict on Admiralty §23, pp. 3–12 to 3–16 (7th rev. ed. 2018). In addition, courts broadened the range of conditions that could render a Cite as: 588 U. S. ____ (2019) 9 GINSBURG, J., dissenting much as hint that Congress, in enacting the Jones Act, intended to cabin the relief available for unseaworthiness. Even today, unseaworthiness and Jones Act negligence are “not identical.” 2 R. Force & M. Norris, The Law of Seamen §27:25, p. 27–61 (5th ed. 2003).7 The persistent differences between unseaworthiness and Jones Act claims weigh against inserting into general maritime law damages limitations that may be applicable to Jones Act suits. See supra, at 7, n. 5.8 The Court observes that a plaintiff may not recover twice for the same injury under the Jones Act and unsea- worthiness. Ante, at 9. True enough. But the Court does not explain why a bar to double recovery of compensatory damages should affect the availability of a single award of punitive damages. Notably, punitive damages are not awarded to compensate the plaintiff; their office is to punish the defendant and deter misconduct. See Exxon, —————— vessel unseaworthy. Id., §23, at 3–16 to 3–19. 7 Unseaworthiness is a strict-liability tort, ante, at 7–8; the Jones Act requires proof of negligence, Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). Unseaworthiness claims run against the vessel’s owner, Mahnich, 321 U.S., at 100; Jones Act claims are brought against the seaman’s “employer,” §30104. Injury caused by the negli- gent act or omission of a fit fellow crewmember may be actionable under the Jones Act but is not ground for an unseaworthiness suit. 1B Benedict on Admiralty §23, at 3–34 to 3–38; see Usner v. Luckenbach Overseas Corp., 400 U.S. 494 (1971). And a vessel owner is liable for unseaworthiness only when the unseaworthy condition proximately caused the plaintiff ’s injury; under the Jones Act, a plaintiff can prevail upon showing the “slight[est]” causal connection between the defend- ant’s conduct and the plaintiff ’s injury. 2 Force & Norris, The Law of Seamen §27:25, at 27–62 to 27–63. See also id., §27:2, at 27–7, and n. 6 (the duty to provide a seaworthy vessel may run to “seamen” who do not qualify as such under the Jones Act). 8 The Court recognizes “that the general maritime law need not be static,” but would confine changes in that law to those needed to align it with statutory law. Ante, at 16, n. 9. As just stated, however, supra, at 8–9, the Jones Act was intended to augment, not to cabin, relief avail- able to seamen. 10 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting 554 U.S., at 492; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §2, p. 9 (5th ed. 1984). There is thus no tension between preventing dou- ble recovery of compensatory damages and allowing the recovery, once, of punitive damages. IV Finally, the Court takes up policy arguments against the availability of punitive damages in unseaworthiness actions. Ante, at 15–18. The Court, however, has long recognized the general availability of punitive damages under maritime law. E.g., Atlantic Sounding, 557 U.S., at 411–412; Exxon, 554 U.S., at 489–490; The Amiable Nancy, 3 Wheat. 546, 558 (1818). Punitive damages serve to deter and punish “lawless misconduct.” Ibid. The imperative of countering a “heightened threat of harm,” Exxon, 554 U.S., at 490, is especially pressing with regard to sailors, who face unique “hazards in the ship’s service,” Harden v. Gordon, 11 F. Cas. 480, 483 (No. 6,047) (CC Me. 1823) (Story, J.). These dangers, more than paternalistic 19th-century attitudes towards sailors, see ante, at 18, account for the Court’s “ ‘special solicitude’ ” for “those who undertake to ‘venture upon hazardous and unpredictable sea voyages.’ ” Air & Liquid Systems Corp. v. DeVries, 586 U. S. ___, ___ (2019) (slip op., at 9) (quoting American Export Lines, Inc. v. Alvez, 446 U.S. 274, 285 (1980)). Dutra and the Court warn that allowing punitive dam- ages in unseaworthiness actions could impair maritime commerce. Brief for Petitioner 33–34; ante, at 17–18. But punitive damages have been available in maintenance and cure cases in all Circuits for the last decade, Atlantic Sounding, 557 U.S. 404, and in unseaworthiness cases in some Circuits for longer, see Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540, 1550 (CA11 1987); Evich, 819 F.2d, at 258. No tidal wave has overwhelmed commerce Cite as: 588 U. S. ____ (2019) 11 GINSBURG, J., dissenting in those Circuits. Permitting punitive damages for unseaworthiness, the Court further urges, would create “bizarre disparities.” Ante, at 17. I see no “bizarre disparit[y]” in allowing an injured sailor to seek remedies unavailable to survivors of deceased seamen. See Keeton, supra, §127, at 949, 951 (state wrongful-death statutes frequently limit survivors’ recoveries to pecuniary damages). Nor is it “bizarre” to permit recovery of punitive damages against a shipowner “for injuries due to unseaworthiness of the vessel.” The Arizona, 298 U.S., at 120. Exposure to such damages helps to deter wrongdoing, particularly when malfeasance is “hard to detect.” Exxon, 554 U.S., at 494. If there is any “bizarre disparit[y],” it is the one the Court today creates: Punitive damages are available for willful and wanton breach of the duty to provide maintenance and cure, but not for similarly culpable breaches of the duty to provide a seaworthy vessel. * * * For the reasons stated, I would affirm the Court of Appeals’ judgment

In Shipping the Court recognized that punitive damages normally are available in maritime cases. at 489–490, 502, 508, n. 21. Relying on the Court today holds that unseaworthiness claims are an exception to that general rule. Respondent Chris- topher Batterton, defending the Ninth Circuit’s decision in his favor, relies on the Court’s more recent decision in Atlantic In my view, the Ninth Circuit correctly determined that Atlantic is the controlling precedent. See 880 F.3d 1089, 1095–1096 (2018) (case below). I would there- fore affirm the judgment of the Court of Appeals, cogently explained in Senior Circuit Judge Kleinfeld’s opinion. I Batterton was employed as a deckhand for petitioner The Dutra Group, a dredging and marine construction company. As Batterton worked on a Dutra vessel, fellow crewmembers pumped pressurized air into a below-decks compartment. The build up of pressurized air blew open a hatch cover that crushed Batterton’s hand, permanently disabling him. The accident could have been prevented, 2 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting Batterton alleges, by a valve to vent excess air from the compartment, something to hold the hatch cover open, or simply better warnings or supervision. Batterton filed a civil action asserting one claim of negligence under the Jones Act1 and two claims under general maritime law: one for breach of the duty to pro- vide a seaworthy vessel and one for breach of the duty to provide maintenance and cure.2 As to his unseaworthi- ness claim, Batterton sought punitive damages, alleging that Dutra’s breach was wanton and willful. Dutra moved to strike or dismiss Batterton’s punitive damages request. The District Court denied the motion, and the Ninth Circuit, accepting an interlocutory appeal, affirmed, Longstanding Ninth Circuit precedent, the court observed, recognized the availability of punitive damages in seamen’s actions for unseaworthiness. at 1091 ). –33, which held that loss-of-society damages are not available in survivors’ actions for unsea- worthiness resulting in a seaman’s wrongful death, the court observed, did not undermine that precedent. 880 F.3d, at 1093–1096. “Whatever room might [have] be[en] left to support broadening to cover punitive damages” sought by a seaman, the Ninth Circuit said, “was cut off by —————— 1 The Jones Act provides: “A seaman injured in the course of employ- ment or, if the seaman dies from the injury, the personal representative of the seaman[,] may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway em- ployee apply to an action under this section.” 46 U.S. C. 2 “Maintenance and cure” is the right of “the seaman, ill or injured in the service of the ship without willful misbehavior on his part[ to] wages to the end of the voyage and subsistence, lodging, and medical care to the point where the maximum cure attainable has been reached.” 2 R. Force & M. Norris, The Law of Seamen p. –4 (5th ed. 2003). Cite as: 588 U. S. (2019) 3 GINSBURG, J., dissenting [this] Court’s decision in Atlantic” in which this Court, recognizing that “historically, punitive damages have been available and awarded in general maritime actions,” held that such damages are available in seamen’s suits for maintenance and cure. (quoting Atlantic ; alteration omitted). Punitive damages, the Ninth Circuit concluded, are simi- larly available when a seaman sues for unseaworthiness under general maritime law. II I turn now to an examination of and Atlantic closer than the attention accorded those deci- sions by the Court. decided in 1990, addressed this question: In a wrongful-death action premised on unseaworthiness, may a deceased seaman’s parent recover damages for loss of society? As the Court explained in historically, general maritime law did not recognize a cause of action for wrongful death. at 23 ). But since the late 19th century, every State had adopted a statutory wrongful- death cause of action. And in two statutes, Congress had provided for wrongful-death recov- eries in maritime cases. First, the Jones Act, 46 U.S. C. provided a right of action for the survivor of a seaman killed in the course of his employment. Sec- ond, the Death on the High Seas Act (DOHSA), 46 U.S. C. et seq., provided a right of action for the survivor of anyone killed “by wrongful act, neglect, or default on the high seas.” But the Jones Act and DOHSA left some wrongful deaths at sea without a remedy. See –.3 To fill —————— 3 These were the unprovided-for cases: “First, in territorial waters, general maritime law allowed a remedy for unseaworthiness resulting in injury, but not for death. Second, DOHSA allowed a remedy for 4 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting gaps in this statutory regime, and in light of legislative abrogation of the common-law disallowance of wrongful- death claims, the Court in recognized a general maritime cause of action for the wrongful death of a long- shoreman. See also –30 (claim for wrongful death is also available to seamen’s survivors). After recounting this history, the Court addressed the damages relief available for maritime wrongful death. Because “Congress and the States ha[d] legislated exten- sively in” the field of maritime law, the Court stated, “admiralty court[s] should look primarily to these legisla- tive enactments for policy guidance.” Congress had expressly limited damages recoverable under DOHSA to “pecuniary loss” sustained by the decedent’s survivor. at 31 (citation omitted). Cite as: 588 U. S. (2019) 5 GINSBURG, J., dissenting at 31–33.4 Some 19 years after in Atlantic this Court held that punitive damages are available in actions for maintenance and cure under general maritime law. Atlantic ’s reasoning had four components. First, the Court observed, punitive damages had a long common-law pedigree. at –410. Sec- ond, the “general rule that punitive damages were avail- able at common law extended to claims arising under fed- eral maritime law.” ; see –412. Third, “[n]othing in maritime law undermine[d] the applicability of this general rule in the maintenance and cure context,” notwithstanding slim evidence that punitive damages were historically awarded in maintenance and cure ac- tions. ; see –415, and n. 4. Finally, neither the Jones Act nor any other statute indicated that Congress sought to displace the presumption that reme- dies generally available under the common law are avail- able for maritime claims. While the Jones Act armed sea- men with a statutory action for negligence attributable to a vessel operator, that remedy, Atlantic noted, did not curtail pre-existing maritime causes of action and remedies. –418. The Atlantic Court rejected as “far too broad” the argument that the remedies available under general maritime law were confined to those available under the Jones Act or DOHSA. at 418–419. —————— 4 The Court relied on comparable reasoning in denying the deceased seaman’s estate, which had brought a survival action, the right to recover future earnings. See at 33–37. Under “the tradi- tional maritime rule,” “there [wa]s no survival of unseaworthiness claims.” The Court declined to decide whether to recognize a general maritime survival right, because, even if such a right were recognized, it would not support recovery of lost future income. This damages limitation followed from the Jones Act, DOHSA, and most States’ laws, which did not permit recovery of such damages. See at 35–36. 6 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting The Atlantic inquiries control this case. As in Atlantic “both the general maritime cause of action”—here, unseaworthiness—“and the remedy (puni- tive damages) were well established before the passage of the Jones Act.” ; ; The Osceola, 189 U.S. 158, 175 (1903). And, unlike the maritime wrongful- death action at issue in Batterton’s claim of unsea- worthiness resulting in personal injury was not created to fill gaps in a statutory scheme. See Atlantic ; 498 U.S., 36. The damages available for Batterton’s unseaworthiness claim, Atlantic therefore signals, need not track those available under the Jones Act. See n. 12. III Applying Atlantic ’s test, see puni- tive damages are not categorically barred in unseaworthi- ness actions. Atlantic itself answers the first two inquiries. See “Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct.” 557 U.S., at ; see at –410. And “[t]he general rule that punitive damages [are] available at common law extended to claims arising under federal maritime law.” ; see – 412. As next explained, the third and fourth components of Atlantic ’s test are also satisfied. A Atlantic asks, third, whether anything in maritime law “undermines the applicability [to the mari- time action at issue] of th[e] general rule” that punitive damages are available under general maritime law. True, there is no evidence that courts awarded punitive damages for unseaworthiness before the mid- 20th century. See ante, at 11–13. But neither is there Cite as: 588 U. S. (2019) 7 GINSBURG, J., dissenting evidence that punitive damages were unavailable in un- seaworthiness actions. Tr. of Oral Arg. 17. Contrary to the Court’s assertion, evidence of the avail- ability of punitive damages for maintenance and cure was not “central to our decision in Atlantic” Ante, at 14–15. Far from it. “[A] search for cases in which puni- tive damages were awarded for the willful denial of maintenance and cure yields very little.” Atlantic The Court in Atlantic invoked historical evidence about punitive damages in maintenance and cure actions, “strikingly slim” though it was, only to under- score this point: Without a showing that punitive damages were unavailable, the generally applicable common-law rule allowing punitive damages should not be displaced. See –415 (majority opinion). Here, too, the absence of evidence that punitive damages were unavail- able in unseaworthiness cases supports adherence to the general common-law rule permitting punitive damages. B Atlantic asks fourth: Has Congress “enacted legislation departing from th[e] common-law understand- ing” that punitive damages are generally available? See Dutra contends that unseaworthiness claims and claims under the Jones Act are “simply two paths to compensation for the same injury.” Brief for Petitioner 19–20 (emphasis deleted). Positing that punitive damages are unavailable under the Jones Act,5 Dutra concludes they are likewise unavailable in unseaworthiness suits. See also ante, at 13–15. Dutra’s argument is unavailing, for the Jones Act does not preclude the award of punitive damages in unseaworthiness cases. —————— 5 This Court has not decided whether punitive damages are available under the Jones Act. See Atlantic 557 U.S. 404, 424, n. 12 (reserving the question). 8 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting As noted, the Jones Act provides a cause of action for a seaman injured by his or her employer’s negligence. 46 U.S. C. Congress passed the Act “primarily to overrule The Osceola, [,] in which this Court prohibited a seaman or his family from recovering for injuries or death suffered due to his employers’ negli- gence.” Atlantic 557 U.S., The Jones Act was intended to “enlarge th[e] protection” afforded to seamen, “not to narrow it.” The v. Anelich, 298 U.S. 110, 123 (1936). Accordingly, the Jones Act did not provide an “exclusive remedy” for seamen’s injuries; in- stead, it “preserve[d]” and supplemented “common-law causes of action.” Atlantic – 417. As itself recognized, the Jones Act “d[id] not disturb seamen’s general maritime claims for injuries resulting from unseaworthiness.” When the Jones Act was enacted, unseaworthiness and negligence were “discrete concepts”: Unseaworthiness related “to the structure of the ship and the adequacy of [its] equipment and furnishings,” while negligence con- cerned “the direction and control of operations aboard ship.” G. Gilmore & C. Black, Law of Admiralty p. 277 (2d ed. 1975). Because these actions were distinct, it is improbable that, by enacting the Jones Act, Congress meant to limit the remedies available in unseaworthiness cases. Though unseaworthiness and Jones Act negligence now “significant[ly] overlap,” ante, at 8, that overlap re- sulted primarily from mid-20th-century judicial decisions expanding the scope of unseaworthiness liability. See 362 U.S., 47–550.6 Those decisions do not so —————— 6 In particular, this Court held that a shipowner’s duty to provide a seaworthy vessel was “absolute,” thereby rendering unseaworthiness a strict-liability tort. Seas Shipping 94–95 (1946); ; see 1B Benedict on Admiralty pp. 3–12 to 3–16 (7th rev. ed. 2018). In addition, courts broadened the range of conditions that could render a Cite as: 588 U. S. (2019) 9 GINSBURG, J., dissenting much as hint that Congress, in enacting the Jones Act, intended to cabin the relief available for unseaworthiness. Even today, unseaworthiness and Jones Act negligence are “not identical.” 2 R. Force & M. Norris, The Law of Seamen p. 27–61 (5th ed. 2003).7 The persistent differences between unseaworthiness and Jones Act claims weigh against inserting into general maritime law damages limitations that may be applicable to Jones Act suits. See8 The Court observes that a plaintiff may not recover twice for the same injury under the Jones Act and unsea- worthiness. Ante, at 9. True enough. But the Court does not explain why a bar to double recovery of compensatory damages should affect the availability of a single award of punitive damages. Notably, punitive damages are not awarded to compensate the plaintiff; their office is to punish the defendant and deter misconduct. See —————— vessel unseaworthy. at 3–16 to 3–19. 7 Unseaworthiness is a strict-liability tort, ante, at 7–8; the Jones Act requires proof of negligence, Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441 (2001). Unseaworthiness claims run against the vessel’s owner, ; Jones Act claims are brought against the seaman’s “employer,” Injury caused by the negli- gent act or omission of a fit fellow crewmember may be actionable under the Jones Act but is not ground for an unseaworthiness suit. 1B Benedict on Admiralty at 3–34 to 3–38; see And a vessel owner is liable for unseaworthiness only when the unseaworthy condition proximately caused the plaintiff ’s injury; under the Jones Act, a plaintiff can prevail upon showing the “slight[est]” causal connection between the defend- ant’s conduct and the plaintiff ’s injury. 2 Force & Norris, The Law of Seamen –62 to 27–63. See also –7, and n. 6 (the duty to provide a seaworthy vessel may run to “seamen” who do not qualify as such under the Jones Act). 8 The Court recognizes “that the general maritime law need not be static,” but would confine changes in that law to those needed to align it with statutory law. Ante, at 16, n. 9. As just stated, at 8–9, the Jones Act was intended to augment, not to cabin, relief avail- able to seamen. 10 DUTRA GROUP v. BATTERTON GINSBURG, J., dissenting ; W. D. Dobbs, R. & D. Owen, Prosser and on Law of Torts p. 9 (5th ed. 1984). There is thus no tension between preventing dou- ble recovery of compensatory damages and allowing the recovery, once, of punitive damages. IV Finally, the Court takes up policy arguments against the availability of punitive damages in unseaworthiness actions. Ante, at 15–18. The Court, has long recognized the general availability of punitive damages under maritime law. E.g., Atlantic 557 U.S., at 411–412; –490; The Amiable Nancy, Punitive damages serve to deter and punish “lawless misconduct.” The imperative of countering a “heightened threat of harm,” is especially pressing with regard to sailors, who face unique “hazards in the ship’s service,” Harden v. Gordon, 11 F. Cas. 480, 483 (No. 6,047) (CC Me. 1823) (Story, J.). These dangers, more than paternalistic 19th-century attitudes towards sailors, see ante, at 18, account for the Court’s “ ‘special solicitude’ ” for “those who undertake to ‘venture upon hazardous and unpredictable sea voyages.’ ” Air & Liquid Systems Corp. v. DeVries, 586 U. S. (2019) (slip op., at 9) ). Dutra and the Court warn that allowing punitive dam- ages in unseaworthiness actions could impair maritime commerce. Brief for Petitioner 33–34; ante, –18. But punitive damages have been available in maintenance and cure cases in all Circuits for the last decade, Atlantic and in unseaworthiness cases in some Circuits for longer, see ; Evich, 819 F.2d, at No tidal wave has overwhelmed commerce Cite as: 588 U. S. (2019) 11 GINSBURG, J., dissenting in those Circuits. Permitting punitive damages for unseaworthiness, the Court further urges, would create “bizarre disparities.” Ante, I see no “bizarre disparit[y]” in allowing an injured sailor to seek remedies unavailable to survivors of deceased seamen. See at 949, 951 (state wrongful-death statutes frequently limit survivors’ recoveries to pecuniary damages). Nor is it “bizarre” to permit recovery of punitive damages against a shipowner “for injuries due to unseaworthiness of the vessel.” The Exposure to such damages helps to deter wrongdoing, particularly when malfeasance is “hard to detect.” If there is any “bizarre disparit[y],” it is the one the Court today creates: Punitive damages are available for willful and wanton breach of the duty to provide maintenance and cure, but not for similarly culpable breaches of the duty to provide a seaworthy vessel. * * * For the reasons stated, I would affirm the Court of Appeals’ judgment

Justice Sotomayor

majority

Southern Union Co. v. United States

2012-06-21

https://www.courtlistener.com/opinion/802770/southern-union-co-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/802770/

2011-069

The Sixth Amendment reserves to juries the determina- tion of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence. Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004). We have applied this principle in numerous cases where the sen- tence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal fines. We hold that it does. I Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a haz- ardous substance, at a facility in Pawtucket, Rhode Is- land. In September 2004, youths from a nearby apart- ment complex broke into the facility, played with the mer- cury, and spread it around the facility and complex. The complex’s residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning. In 2007, a grand jury indicted Southern Union on mul- 2 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court tiple counts of violating federal environmental statutes. As relevant here, the first count alleged that the company knowingly stored liquid mercury without a permit at the Pawtucket facility “[f ]rom on or about September 19, 2002 until on or about October 19, 2004,” App. 104, in viola- tion of the Resource Conservation and Recovery Act of 1976 (RCRA). See 90 Stat. 2812, as amended, 42 U.S. C. §6928(d)(2)(A). A jury convicted Southern Union on this count following a trial in the District Court for the District of Rhode Island. The verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury “on or about September 19, 2002 to October 19, 2004.” App. 140. Violations of the RCRA are punishable by, inter alia, “a fine of not more than $50,000 for each day of violation.” §6928(d). At sentencing, the probation office set a maxi- mum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated Apprendi because the jury was not asked to determine the precise duration of the violation. The company noted that the ver- dict form listed only the violation’s approximate start date (i.e., “on or about”), and argued that the court’s in- structions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require factfinding by the court, in con- travention of Apprendi. The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that Apprendi does not apply to criminal fines. The District Court disagreed and held that Apprendi applies. But the court concluded from the “content and context of the ver- dict all together” that the jury found a 762-day violation. Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court App. to Pet. for Cert. 46a. The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligatio[n]” of $12 million. App. 154. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court’s conclusion that the jury necessarily found a violation of 762 days. 630 F.3d 17, 36 (2010). But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that Apprendi does not apply to criminal fines. 630 F.3d, at 33–36. Other Circuits have reached the opposite conclusion. See United States v. Pfaff, 619 F.3d 172 (CA2 2010) (per curiam); United States v. LaGrou Distribution Sys., Inc., 466 F.3d 585 (CA7 2006). We granted certiorari to resolve the conflict, 565 U. S. ___ (2011), and now reverse. II A This case requires us to consider the scope of the Sixth Amendment right of jury trial, as construed in Apprendi. Under Apprendi, “[o]ther than the fact of a prior convic- tion, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S., at 490. The “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S., at 303 (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not “inflic[t] punishment that the jury’s verdict alone does not allow.” Id., at 304. Apprendi’s rule is “rooted in longstanding common-law practice.” Cunningham v. California, 549 U.S. 270, 281 (2007). It preserves the “historic jury function” of “deter- mining whether the prosecution has proved each element 4 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court of an offense beyond a reasonable doubt.” Oregon v. Ice, 555 U.S. 160, 163 (2009). We have repeatedly affirmed this rule by applying it to a variety of sentencing schemes that allowed judges to find facts that increased a defend- ant’s maximum authorized sentence. See Cunningham, 549 U.S., at 274–275 (elevated “upper term” of impris- onment); United States v. Booker, 543 U.S. 220, 226– 227, 233–234 (2005) (increased imprisonment range for defendant under then-mandatory Federal Sentencing Guidelines); Blakely, 542 U.S., at 299–300 (increased im- prisonment above statutorily prescribed “standard range”); Ring v. Arizona, 536 U.S. 584, 588–589 (2002) (death penalty authorized upon finding existence of aggravating factors); Apprendi, 530 U.S., at 468–469 (extended term of imprisonment based on violation of a “hate crime” statute). While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis under Apprendi for treating criminal fines differ- ently. Apprendi’s “core concern” is to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense.” Ice, 555 U.S., at 170. That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sover- eign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America.1 They are frequently imposed today, especially —————— 1 See Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982) (hereinafter Preyer); see also Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621, 640–641 (2004) (hereinafter Lillquist); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 290 (1989) (O’Connor, J., concurring in part and dissenting in part) (fines were “the preferred penal sanction” in England by the 17th century). “Imprisonment,” in contrast, “although provided for as a Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court upon organizational defendants who cannot be impris- oned.2 And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is of- ten calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation;3 under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor.4 In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement Apprendi’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” Ice, 555 U.S., at 168. In stating Appren- di’s rule, we have never distinguished one form of pun- ishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]”— terms that each undeniably embrace fines. E.g., Blakely, 542 U.S., at 304; Apprendi, 530 U.S., at 490; Ring, 536 U.S., at 589. The Government objects, however, that fines are less —————— punishment in some colonies, was not a central feature of criminal punishment until a later time.” Preyer 329; see also Lillquist 641–643. 2 In 2011, a fine was imposed on 9.0% of individual defendants and on 70.6% of organizational defendants in the federal system. See United States Sentencing Commission, 2011 Annual Report, ch. 5, pp. 34, 40. 3 See, e.g., 12 U.S. C. §1467a(i)(1); 15 U.S. C. §717t(b); 16 U.S. C. §825o(b); Cal. Health & Safety Code Ann. §25515(a) (West Supp. 2012); Colo. Rev. Stat. Ann. §§25–7–122.1(1)(b) and (c) (2011); Mass. Gen. Laws, ch. 21, §34C (West 2010); N. J. Stat. Ann. §13:1E–99.89(f) (West Supp. 2012). 4 See, e.g., 18 U.S. C. §3571(d) (fine “not more than the greater of twice the gross gain or twice the gross loss”); Fla. Stat. §775.083(1)(f) (2010) (same); Tex. Parks & Wild. Code Ann. §12.410(c) (West 2002) (same); see also 18 U.S. C. §645 (fine for embezzlement by officers of United States courts of up to twice the value of the money embezzled); §201(b) (fine for bribery of public officials of up to three times the value of the bribe). 6 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court onerous than incarceration and the death sentence. The Government notes that Apprendi itself referred to the physical deprivation of liberty that imprisonment occa- sions, see 530 U.S., at 484, and that we have placed more weight on imprisonment than on fines when construing the scope of the Sixth Amendment rights to counsel and jury trial. See Blanton v. North Las Vegas, 489 U.S. 538, 542–543 (1989) (jury trial); Scott v. Illinois, 440 U.S. 367, 373–374 (1979) (counsel). Therefore, the Government concludes, fines categorically “do not implicate” the “pri- mary concerns motivating Apprendi.” Brief for United States 23–25. This argument fails because its conclusion does not fol- low from its premise. Where a fine is so insubstantial that the underlying offense is considered “petty,” the Sixth Amendment right of jury trial is not triggered, and no Apprendi issue arises. See, e.g., Muniz v. Hoffman, 422 U.S. 454, 477 (1975) ($10,000 fine imposed on labor union does not entitle union to jury trial); see also Blanton, 489 U.S., at 541 (no jury trial right for “petty” offenses, as measured by the “severity of the maximum authorized penalty” (internal quotation marks omitted)). The same, of course, is true of offenses punishable by relatively brief terms of imprisonment—these, too, do not entitle a de- fendant to a jury trial. See id., at 543 (establishing a rebuttable presumption that offenses punishable by six months’ imprisonment or less are petty); Duncan v. Loui- siana, 391 U.S. 145, 159–162 (1968). But not all fines are insubstantial, and not all offenses punishable by fines are petty. See, e.g., Mine Workers v. Bagwell, 512 U.S. 821, 838, n. 5 (1994) (criminal contempt fine of $52 million imposed on union “unquestionably is a serious contempt sanction” that triggers right of jury trial). The federal twice-the-gain-or-loss statute, in par- ticular, see 18 U.S. C. §3571(d), has been used to obtain substantial judgments against organizational defendants. Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court See, e.g., Amended Judgment in United States v. LG Dis- play Co., Ltd., No. 08–CR–803–SI (ND Cal.), pp. 1–2 ($400 million fine for conviction of single count of violating Sherman Antitrust Act); Judgment in United States v. Siemens Aktiengesellschaft, No. 08–CR–367–RJL (D DC), pp. 1–2, 5 ($448.5 million fine for two violations of Foreign Corrupt Practices Act); United States Sentencing Com- mission, 2010 Annual Report, ch. 5, p. 38 (noting fine of $1.195 billion imposed on pharmaceutical corporation for violations of food and drug laws). And, where the defend- ant is an individual, a large fine may “engender ‘a signifi- cant infringement of personal freedom.’ ” Blanton, 489 U.S., at 542 (quoting Frank v. United States, 395 U.S. 147, 151 (1969)); see also 18 U.S. C. §3572(a)(2) (requiring court to consider “the burden that the fine will impose upon the defendant” in determining whether to impose a fine and in what amount). The Government thus asks the wrong question by com- paring the severity of criminal fines to that of other pun- ishments. So far as Apprendi is concerned, the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee. Where a fine is substantial enough to trigger that right, Apprendi applies in full. As we said in Cunningham, “Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, . . . is the very inquiry Apprendi’s ‘bright-line rule’ was designed to exclude.” 549 U.S., at 291. This case is exemplary. The RCRA subjects Southern Union to a maximum fine of $50,000 for each day of violation. 42 U.S. C. §6928(d). The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial. And the Government now concedes the District Court made factual findings that increased both the “potential and actual” fine 8 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court the court imposed. Brief for United States 28. This is exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admis- sions allow. B In concluding that the rule of Apprendi does not apply to criminal fines, the Court of Appeals relied on our decision in Ice. Ice addressed the question whether, when a de- fendant is convicted of multiple offenses, Apprendi forbids judges to determine facts that authorize the imposition of consecutive sentences. 555 U.S., at 164. In holding that Apprendi does not, Ice emphasized that juries historically played no role in deciding whether sentences should run consecutively or concurrently. See 555 U.S., at 168–169. The Court of Appeals reasoned that juries were similarly uninvolved in setting criminal fines. 630 F.3d, at 35.5 The Court of Appeals was correct to examine the histor- ical record, because “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” Ice, 555 U.S., at 170. See also, e.g., Blakely, 542 U.S., at 301–302; Apprendi, 530 U.S., at 477–484. But in our view, the record supports applying —————— 5 Ice also stated in dicta that applying Apprendi to consecutive- versus-concurrent sentencing determinations might imperil a variety of sentencing decisions judges commonly make, including “the imposition of statutorily prescribed fines.” 555 U.S., at 171. The Court of Appeals read this statement to mean that Apprendi does not apply to criminal fines. 630 F.3d, at 34. We think the statement is at most ambiguous, and more likely refers to the routine practice of judges’ imposing fines from within a range authorized by jury-found facts. Such a practice poses no problem under Apprendi because the penalty does not exceed what the jury’s verdict permits. See 530 U.S., at 481. In any event, our statement in Ice was unnecessary to the judgment and is not binding. Central Va. Community College v. Katz, 546 U.S. 356, 363 (2006). Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court Apprendi to criminal fines. To be sure, judges in the col- onies and during the founding era “possessed a great deal of discretion” in determining whether to impose a fine and in what amount. Lillquist 640–641; see also Preyer 350. Often, a fine’s range “was apparently without limit except insofar as it was within the expectation on the part of the court that it would be paid.” Ibid. For some other offenses, the maximum fine was capped by statute. See, e.g., id., at 333 (robbery, larceny, burglary, and other offenses punishable in Massachusetts Bay Colony “by fines of up to £5”); Act of Feb. 28, 1803, ch. 9, §7, 2 Stat. 205 (any consul who gives a false certificate shall “forfeit and pay a fine not exceeding ten thousand dollars, at the discretion of the court”); K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (describing federal practice). The exercise of such sentencing discretion is fully con- sistent with Apprendi, which permits courts to impose “judgment within the range prescribed by statute.” 530 U.S., at 481 (emphasis in original). Nor, a fortiori, could there be an Apprendi violation where no maximum is prescribed. Indeed, in surveying the historical record that formed the basis of our holding in Apprendi, we specifi- cally considered the English practice with respect to fines, which, as was true of many colonial offenses, made sen- tencing largely “dependent upon judicial discretion.” See id., at 480, n. 7; see also Jones v. United States, 526 U.S. 227, 244–245 (1999); 4 W. Blackstone, Commentaries on the Laws of England 372–373 (1769) (hereinafter Black- stone). And even then, as the dissent acknowledges, post, at 11–12 (opinion of BREYER, J.), there is authority sug- gesting that English juries were required to find facts that determined the authorized pecuniary punishment. See 1 T. Starkie, A Treatise on Criminal Pleading 187–188 (1814) (In cases “where the offence, or its defined measure of punishment, depends upon” property’s specific value, 10 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court the value “must be proved precisely as it is laid [in the indictment], and any variance will be fatal”); see also id., at 188 (“[I]n the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value” (emphasis in original)); 2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 25, §75, pp. 234–235 (3d ed. 1739) (doubting whether “it be need- ful to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine”). In any event, the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts— often, the value of damaged or stolen property. See Ap- prendi, 530 U.S., at 502, n. 2 (THOMAS, J., concurring). Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury. See, e.g., Com- monwealth v. Smith, 1 Mass. 245, 247 (1804) (declining to award judgment of treble damages for all stolen items in larceny prosecution when indictment alleged value of only some of the items); Clark v. People, 2 Ill. 117, 120–121 (1833) (arson indictment must allege value of destroyed building because statute imposed “a fine equal in value to the property burned”); State v. Garner, 8 Port. 447, 448 (Ala. 1839) (same in malicious mischief prosecution where punishment was fine “not exceeding four fold the value of the property injured or destroyed”); Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (same in arson prosecution because, “[i]n addition to imprisonment in the peniten- tiary, the guilty person is liable to a fine not exceeding double the value of the property destroyed”); Hope v. Commonwealth, 50 Mass. 134, 137 (1845) (the “value of the property alleged to be stolen must be set forth in the Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court indictment” in part because “[o]ur statutes . . . prescribe the punishment for larceny, with reference to the value of the property stolen”); State v. Goodrich, 46 N. H. 186, 188 (1865) (“It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring the [value of the stolen items] to be stated [in the indictment]”); United States v. Woodruff, 68 F. 536, 538 (Kan. 1895) (“[T]he defendant is entitled to his constitutional right of trial by jury” to ascertain “the exact sum for which a fine may be imposed”).6 The rule that juries must determine facts that set a —————— 6 The dissent believes these decisions are inapposite because some of them arose in States that authorized juries, rather than judges, to im- pose sentence. See post, at 18–20. But this fact was not the basis of the decisions; rather, the courts required value to be alleged and proved to the jury because “the extent of the punishment . . . depend[s] upon the value of the property consumed or injured.” Ritchey, 7 Blackf., at 169; see also, e.g., Clark, 2 Ill., at 120–121 (same). And as Bishop explained, this requirement of proof originated not from a unique fea- ture of jury sentencing, but from longstanding common-law princi- ples—a point to which the dissent notably does not respond. 1 J. Bishop, Criminal Procedure §§81, 540 (2d ed. 1872). See infra, at 12. Nor, for that matter, do larceny cases “presen[t] a special circum- stance.” Post, at 20. Such decisions invoked the same reasoning as the other cases just mentioned. See, e.g., Hope, 50 Mass., at 137 (value must be proved because, among other things, “[o]ur statutes . . . pre- scribe the punishment for larceny . . . with reference to the value of the property stolen”); Goodrich, 46 N. H., at 188 (same). Bishop made this point explicit: “[Value] must be alleged wherever it is an element to be considered by the court in determining the punishment, and it is immaterial whether the particular crime is larceny or any other crime.” Criminal Procedure §541, at 331 (footnote omitted and emphasis added). At the end of the day, the only evidence the dissent musters that judges found fine-enhancing facts are United States v. Tyler, 7 Cranch 285 (1812), and one lower-court decision restating Tyler’s holding. See post, at 15–17. We address Tyler below. See infra, at 13–14. 12 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court fine’s maximum amount is an application of the “two longstanding tenets of common-law criminal jurispru- dence” on which Apprendi is based: First, “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” Blakely, 542 U.S., at 301 (quot- ing 4 Blackstone 343). And second, “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the require- ments of the common law, and it is no accusation in rea- son.’ ” 542 U.S., at 301–302 (quoting 1 J. Bishop, Crimi- nal Procedure §87, p. 55 (2d ed. 1872)). Indeed, Bishop’s leading treatise on criminal procedure specifically identi- fied cases involving fines as evidence of the proposition that “the indictment must, in order to inform the court what punishment to inflict, contain an averment of every particular thing which enters into the punishment.” Id., §540, at 330 (discussing Clark and Garner). This princi- ple, Bishop explained, “pervades the entire system of the adjudged law of criminal procedure. It is not made appar- ent to our understandings by a single case only, but by all the cases.” Criminal Procedure §81, at 51. See also Ap- prendi, 530 U.S., at 510–511 (THOMAS, J., concurring) (explaining that Bishop grounded this principle in “well- established common-law practice . . . and in the provisions of Federal and State Constitutions guaranteeing notice of an accusation in all criminal cases, indictment by a grand jury for serious crimes, and trial by jury”). As counterevidence that juries historically did not de- termine facts relevant to criminal fines, the Government points to two decisions from this Court. One is United States v. Murphy, 16 Pet. 203 (1842), which considered whether an interested witness was competent to testify in a larceny prosecution brought under a provision of the Crimes Act of 1790. Murphy’s only relevance to this case is that the Crimes Act authorized a fine of up to four times Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court the value of the stolen property, and the Court remarked that “the fine is, as to its amount, purely in the discretion of the Court.” Id., at 209. But this statement is best read as permitting the court to select a fine from within the maximum authorized by jury-found facts—a practice, as noted, that accords with Apprendi. Such a reading is consistent with the fact that the indictment in Murphy alleged the value of the stolen items, see 16 Pet., at 207– 208, and with the practice of contemporary courts address- ing the same statute, see United States v. Holland, 26 F. Cas. 343, 345 (No. 15,378) (CC SDNY 1843) (trial court instructs jury “to assess the value of the property taken” in order to determine maximum fine); Pye v. United States, 20 F. Cas. 99 (No. 11,488) (CC DC 1842) (value of stolen items alleged in indictment). The Government and dissent place greater reliance on United States v. Tyler, 7 Cranch 285 (1812). But like Murphy, this decision involved no constitutional question. Rather, it construed a federal embargo statute that im- posed a fine of four times the value of the property intended to be exported. The indictment identified the property at issue as “pearl-ashes,” but the jury’s guilty verdict re- ferred instead to “ ‘pot-ashes [that] were worth two hun- dred and eighty dollars.’ ” Tyler, 7 Cranch, at 285.7 The question was whether the discrepancy rendered the ver- dict “not sufficiently certain as to the value of the property charged in the indictment,” i.e., pearl-ashes. Ibid. The Court held that the discrepancy was immaterial, on the ground that “under this law, no valuation by the jury was —————— 7 We will not keep the reader in suspense: pot-ash and pearl-ash are alkaline salts of differing causticity that “for a long time . . . [were] amongst the most valuable articles of manufacture and commerce” in parts of early America. D. Townsend, Principles and Observations Applied to the Manufacture and Inspection of Pot and Pearl Ashes 3 (1793). See also Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., 563 U. S. __, __ (2011) (slip op., at 6). 14 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court necessary to enable the Circuit Court to impose the proper fine.” Ibid. The Court’s reasoning is somewhat opaque, but appears to rest on the text of the embargo statute, which directed that the defendant “shall, upon conviction, be . . . fined a sum by the Court.” Ibid. In any event, nothing in the decision purports to construe the Sixth Amendment. And, insofar as Tyler reflects prevailing practice, it bears noting that both the indictment and ver- dict identified the value of the property at issue. See Tr. 2 in Tyler, 7 Cranch 285, reprinted in Appellate Case Files of the Supreme Court of the United States, 1792– 1831, National Archives Microfilm Publications No. 214 (1962), roll 18 (indictment: “nineteen barrels of pearlashes, which were then and there of the value of six hundred dollars”). Whatever the precise meaning of this decision, it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines. III The Government’s remaining arguments, echoed by the dissent (see post, at 23–28), are unpersuasive. The Gov- ernment first submits that, when it comes to fines, “the judicially found facts typically involve only quantifying the harm caused by the defendant’s offense”—for example, how long did the violation last, or how much money did the defendant gain (or the victim lose)?—“as opposed to de- fining a separate set of acts for punishment.” Brief for United States 25. Only the latter determination, the Government contends, implicates Apprendi’s concerns. This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant differ- ence between a fact that is an “element” of the offense and one that is a “sentencing factor.” See, e.g., 530 U. S., at Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court 478; Ring, 536 U.S., at 605. Second, we doubt the coher- ence of this distinction. This case proves the point. Under 42 U.S. C. §6928(d), the fact that will ultimately deter- mine the maximum fine Southern Union faces is the num- ber of days the company violated the statute. Such a finding is not fairly characterized as merely “quantifying the harm” Southern Union caused. Rather, it is a deter- mination that for each given day, the Government has proved that Southern Union committed all of the acts constituting the offense. The Government next contends that applying Apprendi to fines will prevent States and the Federal Government from enacting statutes that, like §6928(d), calibrate fines to a defendant’s culpability, thus providing just punish- ment and reducing unwarranted sentencing disparity. But the Government presents a false choice. As was true in our prior Apprendi cases, and remains so here, legisla- tures are free to enact statutes that constrain judges’ discretion in sentencing—Apprendi requires only that such provisions be administered in conformance with the Sixth Amendment. Last, the Government argues that requiring juries to determine facts related to fines will cause confusion (be- cause expert testimony might be needed to guide the inquiry); or prejudice the defendant (who might have to deny violating a statute while simultaneously arguing that any violation was minimal); or be impractical (at least when the relevant facts are unknown or unknowable until the trial is completed).8 These arguments rehearse —————— 8 In this vein, the dissent speculates that today’s decision may “nudg[e] our [criminal justice] system” further in favor of plea bargains at the expense of jury trials. Post, at 28. But groups representing the interests of defendants—whom the dissent’s rule purportedly favors— tell us the opposite is true. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 5 (“[E]xempting crimi- nal fines from Apprendi makes innocent defendants more likely to 16 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court those made by the dissents in our prior Apprendi cases. See Booker, 543 U.S., at 329 (BREYER, J., dissenting in part); Blakely, 542 U.S., at 318–320 (O’Connor, J., dissenting); id., at 330–340 (BREYER, J., dissenting); Ap- prendi, 530 U.S., at 555–559 (same). Here, as there, they must be rejected. For even if these predictions are ac- curate, the rule the Government espouses is unconstitu- tional. That “should be the end of the matter.” Blakely, 542 U.S., at 313. But here there is particular reason to doubt the strength of these policy concerns. Apprendi is now more than a decade old. The reliance interests that underlie many of the Government’s arguments are by this point attenuated. Nor, in our view, does applying Apprendi’s rule to criminal fines mark an unexpected extension of the doctrine. Most Circuits to have addressed the issue already embrace this position, see Pfaff, 619 F.3d, at 175–176; LaGrou Distri- bution Sys., 466 F.3d, at 594; United States v. Yang, 144 Fed. Appx. 521, 524 (CA6 2005), as did the Government prior to Ice, see Brief in Opposition 11, n. 2. In light of the reasons given in this opinion, the dramatic departure from precedent would be to hold criminal fines exempt from Apprendi. * * * We hold that the rule of Apprendi applies to the imposi- tion of criminal fines. 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. —————— plead guilty”). Cite as: 567 U. S. ____ (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 11–94 _________________ SOUTHERN UNION COMPANY, PETITIONER v.

The Sixth Amendment reserves to juries the determina- tion of any fact, other than the fact of a prior conviction, that increases a criminal defendant’s maximum potential sentence. ; We have applied this principle in numerous cases where the sen- tence was imprisonment or death. The question here is whether the same rule applies to sentences of criminal We hold that it does. I Petitioner Southern Union Company is a natural gas distributor. Its subsidiary stored liquid mercury, a haz- ardous substance, at a facility in Pawtucket, Rhode Is- land. In September 2004, youths from a nearby apart- ment complex broke into the facility, played with the mer- cury, and spread it around the facility and complex. The complex’s residents were temporarily displaced during the cleanup and most underwent testing for mercury poisoning. In 2007, a grand jury indicted Southern Union on mul- 2 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court tiple counts of violating federal environmental statutes. As relevant here, the first count alleged that the company knowingly stored liquid mercury without a permit at the Pawtucket facility “[f ]rom on or about September 19, 2002 until on or about October 19, 2004,” App. 104, in viola- tion of the Resource Conservation and Recovery Act of 1976 (RCRA). See as amended, 42 U.S. C. A jury convicted Southern Union on this count following a trial in the District Court for the District of Rhode Island. The verdict form stated that Southern Union was guilty of unlawfully storing liquid mercury “on or about September 19, 2002 to October 19, 2004.” App. 140. Violations of the RCRA are punishable by, inter alia, “a fine of not more than $50,000 for each day of violation.” At sentencing, the probation office set a maxi- mum fine of $38.1 million, on the basis that Southern Union violated the RCRA for each of the 762 days from September 19, 2002, through October 19, 2004. Southern Union objected that this calculation violated because the jury was not asked to determine the precise duration of the violation. The company noted that the ver- dict form listed only the violation’s approximate start date (i.e., “on or about”), and argued that the court’s in- structions permitted conviction if the jury found even a 1-day violation. Therefore, Southern Union maintained, the only violation the jury necessarily found was for one day, and imposing any fine greater than the single-day penalty of $50,000 would require factfinding by the court, in con- travention of The Government acknowledged the jury was not asked to specify the duration of the violation, but argued that does not apply to criminal The District Court disagreed and held that applies. But the court concluded from the “content and context of the ver- dict all together” that the jury found a 762-day violation. Cite as: 567 U. S. (2012) 3 Opinion of the Court App. to Pet. for Cert. 46a. The court therefore set a maximum potential fine of $38.1 million, from which it imposed a fine of $6 million and a “community service obligatio[n]” of $12 million. App. 154. On appeal, the United States Court of Appeals for the First Circuit rejected the District Court’s conclusion that the jury necessarily found a violation of 762 days. 630 F.3d 17, 36 (2010). But the Court of Appeals affirmed the sentence because it also held, again in contrast to the District Court, that does not apply to criminal –36. Other Circuits have reached the opposite conclusion. See United States v. 619 F.3d 172 (CA2 2010) (per curiam); United States v. LaGrou Distribution Inc., We granted certiorari to resolve the conflict, 565 U. S. (2011), and now reverse. II A This case requires us to consider the scope of the Sixth Amendment right of jury trial, as construed in Under “[o]ther than the fact of a prior convic- tion, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S., at 490. The “ ‘statutory maximum’ for purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (emphasis deleted). Thus, while judges may exercise discretion in sentencing, they may not “inflic[t] punishment that the jury’s verdict alone does not allow.” ’s rule is “rooted in longstanding common-law practice.” (2007). It preserves the “historic jury function” of “deter- mining whether the prosecution has proved each element 4 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court of an offense beyond a reasonable doubt.” We have repeatedly affirmed this rule by applying it to a variety of sentencing schemes that allowed judges to find facts that increased a defend- ant’s maximum authorized sentence. See Cunningham, –275 (elevated “upper term” of impris- onment); United 226– 227, 233–234 (2005) (increased imprisonment range for defendant under then-mandatory Federal Sentencing Guidelines); –300 (increased im- prisonment above statutorily prescribed “standard range”); (death penalty authorized upon finding existence of aggravating factors); –469 (extended term of imprisonment based on violation of a “hate crime” statute). While the punishments at stake in those cases were imprisonment or a death sentence, we see no principled basis under for treating criminal fines differ- ently. ’s “core concern” is to reserve to the jury “the determination of facts that warrant punishment for a specific statutory offense.” That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sover- eign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America.1 They are frequently imposed today, especially —————— 1 See Preyer, Penal Measures in the American Colonies: An Overview, ; see also Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About 82 N. C. L. Rev. 621, 640–641 (hereinafter Lillquist); Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 290 (1989) (O’Connor, J., concurring in part and dissenting in part) (fines were “the preferred penal sanction” in England by the 17th century). “Imprisonment,” in contrast, “although provided for as a Cite as: 567 U. S. (2012) 5 Opinion of the Court upon organizational defendants who cannot be impris- oned.2 And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is of- ten calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation;3 under other statutes it is the amount of the defendant’s gain or the victim’s loss, or some other factor.4 In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine’s maximum amount is necessary to implement ’s “animating principle”: the “preservation of the jury’s historic role as a bulwark between the State and the accused at the trial for an alleged offense.” In stating Appren- di’s rule, we have never distinguished one form of pun- ishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal “sentence[s],” “penalties,” or “punishment[s]”— terms that each undeniably embrace E.g., 542 U.S., ; ; 536 U.S., at 589. The Government objects, however, that fines are less —————— punishment in some colonies, was not a central feature of criminal punishment until a later time.” Preyer 329; see also Lillquist 641–643. 2 In 2011, a fine was imposed on 9.0% of individual defendants and on 70.6% of organizational defendants in the federal system. See United States Sentencing Commission, 2011 Annual Report, ch. 5, pp. 34, 40. 3 See, e.g., 12 U.S. C. 15 U.S. C. 16 U.S. C. Cal. Health & Safety Code Ann. (West Supp. 2012); –7–122.1(1)(b) and (c) (2011); Mass. Gen. Laws, ch. 21, (West 2010); N. J. Stat. Ann. (West Supp. 2012). 4 See, e.g., 18 U.S. C. (fine “not more than the greater of twice the gross gain or twice the gross loss”); (1)(f) (2010) (same); (c) (same); see also 18 U.S. C. (fine for embezzlement by officers of United States courts of up to twice the value of the money embezzled); (fine for bribery of public officials of up to three times the value of the bribe). 6 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court onerous than incarceration and the death sentence. The Government notes that itself referred to the physical deprivation of liberty that imprisonment occa- sions, see and that we have placed more weight on imprisonment than on fines when construing the scope of the Sixth Amendment rights to counsel and jury trial. See 542–543 (1989) (jury trial); 373–374 (1979) (counsel). Therefore, the Government concludes, fines categorically “do not implicate” the “pri- mary concerns motivating” Brief for United States 23–25. This argument fails because its conclusion does not fol- low from its premise. Where a fine is so insubstantial that the underlying offense is considered “petty,” the Sixth Amendment right of jury trial is not triggered, and no issue arises. See, e.g., Muniz v. Hoffman, 422 U.S. 454, 477 (1975) ($10,000 fine imposed on labor union does not entitle union to jury trial); see also Blanton, (no jury trial right for “petty” offenses, as measured by the “severity of the maximum authorized penalty” (internal quotation marks omitted)). The same, of course, is true of offenses punishable by relatively brief terms of imprisonment—these, too, do not entitle a de- fendant to a jury trial. See (establishing a rebuttable presumption that offenses punishable by six months’ imprisonment or less are petty); But not all fines are insubstantial, and not all offenses punishable by fines are petty. See, e.g., Mine Workers v. Bagwell, (criminal contempt fine of $52 million imposed on union “unquestionably is a serious contempt sanction” that triggers right of jury trial). The federal twice-the-gain-or-loss statute, in par- ticular, see 18 U.S. C. has been used to obtain substantial judgments against organizational defendants. Cite as: 567 U. S. (2012) 7 Opinion of the Court See, e.g., Amended Judgment in United States v. LG Dis- play Co., Ltd., No. 08–CR–803–SI (ND Cal.), pp. 1–2 ($400 million fine for conviction of single count of violating Sherman Antitrust Act); Judgment in United States v. Siemens Aktiengesellschaft, No. 08–CR–367–RJL (D DC), pp. 1–2, 5 ($.5 million fine for two violations of Foreign Corrupt Practices Act); United States Sentencing Com- mission, 2010 Annual Report, ch. 5, p. 38 (noting fine of $1.195 billion imposed on pharmaceutical corporation for violations of food and drug laws). And, where the defend- ant is an individual, a large fine may “engender ‘a signifi- cant infringement of personal freedom.’ ” Blanton, 489 U.S., at 542 (quoting Frank v. United States, 395 U.S. 147, 151 (1969)); see also 18 U.S. C. (requiring court to consider “the burden that the fine will impose upon the defendant” in determining whether to impose a fine and in what amount). The Government thus asks the wrong question by com- paring the severity of criminal fines to that of other pun- ishments. So far as is concerned, the relevant question is the significance of the fine from the perspective of the Sixth Amendment’s jury trial guarantee. Where a fine is substantial enough to trigger that right, applies in full. As we said in Cunningham, “Asking whether a defendant’s basic jury-trial right is preserved, though some facts essential to punishment are reserved for determination by the judge, is the very inquiry ’s ‘bright-line rule’ was designed to exclude.” 549 U.S., at 291. This case is exemplary. The RCRA subjects Southern Union to a maximum fine of $50,000 for each day of violation. 42 U.S. C. The Government does not deny that, in light of the seriousness of that punishment, the company was properly accorded a jury trial. And the Government now concedes the District Court made factual findings that increased both the “potential and actual” fine 8 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court the court imposed. Brief for United States 28. This is exactly what guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury’s verdict or the defendant’s admis- sions allow. B In concluding that the rule of does not apply to criminal fines, the Court of Appeals relied on our decision in addressed the question whether, when a de- fendant is convicted of multiple offenses, forbids judges to determine facts that authorize the imposition of consecutive In holding that does not, emphasized that juries historically played no role in deciding whether sentences should run consecutively or concurrently. See –169. The Court of Appeals reasoned that juries were similarly uninvolved in setting criminal5 The Court of Appeals was correct to examine the histor- ical record, because “the scope of the constitutional jury right must be informed by the historical role of the jury at common law.” See also, e.g., –302; 530 U.S., at 477–484. But in our view, the record supports applying —————— 5 also stated in dicta that applying to consecutive- versus-concurrent sentencing determinations might imperil a variety of sentencing decisions judges commonly make, including “the imposition of statutorily prescribed ” The Court of Appeals read this statement to mean that does not apply to criminal We think the statement is at most ambiguous, and more likely refers to the routine practice of judges’ imposing fines from within a range authorized by jury-found facts. Such a practice poses no problem under because the penalty does not exceed what the jury’s verdict permits. See In any event, our statement in was unnecessary to the judgment and is not binding. Central Va. Community Cite as: 567 U. S. (2012) 9 Opinion of the Court to criminal To be sure, judges in the col- onies and during the founding era “possessed a great deal of discretion” in determining whether to impose a fine and in what amount. Lillquist 640–641; see also Preyer Often, a fine’s range “was apparently without limit except insofar as it was within the expectation on the part of the court that it would be paid.” For some other offenses, the maximum fine was capped by statute. See, e.g., (robbery, larceny, burglary, and other offenses punishable in Massachusetts Bay Colony “by fines of up to £5”); Act of Feb. 28, 1803, ch. 9, 2 Stat. 205 (any consul who gives a false certificate shall “forfeit and pay a fine not exceeding ten thousand dollars, at the discretion of the court”); K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (describing federal practice). The exercise of such sentencing discretion is fully con- sistent with which permits courts to impose “judgment within the range prescribed by statute.” 530 U.S., at 481 (emphasis in original). Nor, a fortiori, could there be an violation where no maximum is prescribed. Indeed, in surveying the historical record that formed the basis of our holding in we specifi- cally considered the English practice with respect to fines, which, as was true of many colonial offenses, made sen- tencing largely “dependent upon judicial discretion.” See ; see also Jones v. United States, 526 U.S. 227, 244–245 (1999); 4 W. Blackstone, Commentaries on the Laws of England 372–373 (1769) (hereinafter Black- stone). And even then, as the dissent acknowledges, post, at 11–12 (opinion of BREYER, J.), there is authority sug- gesting that English juries were required to find facts that determined the authorized pecuniary punishment. See 1 T. Starkie, A Treatise on Criminal Pleading 187–188 (1814) (In cases “where the offence, or its defined measure of punishment, depends upon” property’s specific value, 10 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court the value “must be proved precisely as it is laid [in the indictment], and any variance will be fatal”); see also (“[I]n the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value” (emphasis in original)); 2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 25, pp. 234–235 (3d ed. 1739) (doubting whether “it be need- ful to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine”). In any event, the salient question here is what role the jury played in prosecutions for offenses that did peg the amount of a fine to the determination of specified facts— often, the value of damaged or stolen property. See Ap- n. 2 Our review of state and federal decisions discloses that the predominant practice was for such facts to be alleged in the indictment and proved to the jury. See, e.g., Com- (declining to award judgment of treble damages for all stolen items in larceny prosecution when indictment alleged value of only some of the items); 120–121 (1833) (arson indictment must allege value of destroyed building because statute imposed “a fine equal in value to the property burned”); (Ala. 1839) (same in malicious mischief prosecution where punishment was fine “not exceeding four fold the value of the property injured or destroyed”); Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (same in arson prosecution because, “[i]n addition to imprisonment in the peniten- tiary, the guilty person is liable to a fine not exceeding double the value of the property destroyed”); v. Commonwealth, (the “value of the property alleged to be stolen must be set forth in the Cite as: 567 U. S. (2012) 11 Opinion of the Court indictment” in part because “[o]ur statutes prescribe the punishment for larceny, with reference to the value of the property stolen”); State v. Goodrich, 46 N. H. 186, 188 (1865) (“It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring the [value of the stolen items] to be stated [in the indictment]”); United (“[T]he defendant is entitled to his constitutional right of trial by jury” to ascertain “the exact sum for which a fine may be imposed”).6 The rule that juries must determine facts that set a —————— 6 The dissent believes these decisions are inapposite because some of them arose in States that authorized juries, rather than judges, to im- pose sentence. See post, at 18–20. But this fact was not the basis of the decisions; rather, the courts required value to be alleged and proved to the jury because “the extent of the punishment depend[s] upon the value of the property consumed or injured.” Ritchey, 7 Blackf., at 169; see also, e.g., –121 (same). And as Bishop explained, this requirement of proof originated not from a unique fea- ture of jury sentencing, but from longstanding common-law princi- ples—a point to which the dissent notably does not respond. 1 J. Bishop, Criminal Procedure 540 (2d ed. 1872). See infra, at 12. Nor, for that matter, do larceny cases “presen[t] a special circum- stance.” Post, at 20. Such decisions invoked the same reasoning as the other cases just mentioned. See, e.g., 50 Mass., at (value must be proved because, among other things, “[o]ur statutes pre- scribe the punishment for larceny with reference to the value of the property stolen”); Goodrich, 46 N. H., (same). Bishop made this point explicit: “[Value] must be alleged wherever it is an element to be considered by the court in determining the punishment, and it is immaterial whether the particular crime is larceny or any other crime.” Criminal Procedure at 331 (footnote omitted and emphasis added). At the end of the day, the only evidence the dissent musters that judges found fine-enhancing facts are United 7 Cranch 285 and one lower-court decision restating ’s holding. See post, at 15–17. We address below. See infra, at 13–14. 12 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court fine’s maximum amount is an application of the “two longstanding tenets of common-law criminal jurispru- dence” on which is based: First, “the ‘truth of every accusation’ against a defendant ‘should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours.’ ” (quot- ing 4 Blackstone 343). And second, “ ‘an accusation which lacks any particular fact which the law makes essential to the punishment is no accusation within the require- ments of the common law, and it is no accusation in rea- son.’ ” –302 (quoting 1 J. Bishop, Crimi- nal Procedure p. 55 (2d ed. 1872)). Indeed, Bishop’s leading treatise on criminal procedure specifically identi- fied cases involving fines as evidence of the proposition that “the indictment must, in order to inform the court what punishment to inflict, contain an averment of every particular thing which enters into the punishment.” at 330 (discussing and Garner). This princi- ple, Bishop explained, “pervades the entire system of the adjudged law of criminal procedure. It is not made appar- ent to our understandings by a single case only, but by all the cases.” Criminal Procedure at 51. See also Ap- –511 (explaining that Bishop grounded this principle in “well- established common-law practice and in the provisions of Federal and State Constitutions guaranteeing notice of an accusation in all criminal cases, indictment by a grand jury for serious crimes, and trial by jury”). As counterevidence that juries historically did not de- termine facts relevant to criminal fines, the Government points to two decisions from this Court. One is United which considered whether an interested witness was competent to testify in a larceny prosecution brought under a provision of the Crimes Act of 1790. Murphy’s only relevance to this case is that the Crimes Act authorized a fine of up to four times Cite as: 567 U. S. (2012) 13 Opinion of the Court the value of the stolen property, and the Court remarked that “the fine is, as to its amount, purely in the discretion of the Court.” But this statement is best read as permitting the court to select a fine from within the maximum authorized by jury-found facts—a practice, as noted, that accords with Such a reading is consistent with the fact that the indictment in Murphy alleged the value of the stolen items, see – 208, and with the practice of contemporary courts address- ing the same statute, see United States v. Holland, 26 F. Cas. 343, 345 (No. 15,378) (CC SDNY 1843) (trial court instructs jury “to assess the value of the property taken” in order to determine maximum fine); (No. 11,488) (value of stolen items alleged in indictment). The Government and dissent place greater reliance on United But like Murphy, this decision involved no constitutional question. Rather, it construed a federal embargo statute that im- posed a fine of four times the value of the property intended to be exported. The indictment identified the property at issue as “pearl-ashes,” but the jury’s guilty verdict re- ferred instead to “ ‘pot-ashes [that] were worth two hun- dred and eighty dollars.’ ”7 The question was whether the discrepancy rendered the ver- dict “not sufficiently certain as to the value of the property charged in the indictment,” i.e., pearl-ashes. The Court held that the discrepancy was immaterial, on the ground that “under this law, no valuation by the jury was —————— 7 We will not keep the reader in suspense: pot-ash and pearl-ash are alkaline salts of differing causticity that “for a long time [were] amongst the most valuable articles of manufacture and commerce” in parts of early America. D. Townsend, Principles and Observations Applied to the Manufacture and Inspection of Pot and Pearl Ashes 3 (1793). See also Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., 563 U. S. (2011) (slip op., at 6). 14 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court necessary to enable the Circuit Court to impose the proper fine.” The Court’s reasoning is somewhat opaque, but appears to rest on the text of the embargo statute, which directed that the defendant “shall, upon conviction, be fined a sum by the Court.” In any event, nothing in the decision purports to construe the Sixth Amendment. And, insofar as reflects prevailing practice, it bears noting that both the indictment and ver- dict identified the value of the property at issue. See Tr. 2 in reprinted in Appellate Case Files of the Supreme Court of the United States, 1792– 1831, National Archives Microfilm Publications No. 214 (1962), roll 18 (indictment: “nineteen barrels of pearlashes, which were then and there of the value of six hundred dollars”). Whatever the precise meaning of this decision, it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of III The Government’s remaining arguments, echoed by the dissent (see post, at 23–28), are unpersuasive. The Gov- ernment first submits that, when it comes to fines, “the judicially found facts typically involve only quantifying the harm caused by the defendant’s offense”—for example, how long did the violation last, or how much money did the defendant gain (or the victim lose)?—“as opposed to de- fining a separate set of acts for punishment.” Brief for United States 25. Only the latter determination, the Government contends, implicates ’s concerns. This argument has two defects. First, it rests on an assumption that and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant differ- ence between a fact that is an “element” of the offense and one that is a “sentencing factor.” See, e.g., 530 U. S., at Cite as: 567 U. S. (2012) 15 Opinion of the Court 478; Second, we doubt the coher- ence of this distinction. This case proves the point. Under 42 U.S. C. the fact that will ultimately deter- mine the maximum fine Southern Union faces is the num- ber of days the company violated the statute. Such a finding is not fairly characterized as merely “quantifying the harm” Southern Union caused. Rather, it is a deter- mination that for each given day, the Government has proved that Southern Union committed all of the acts constituting the offense. The Government next contends that applying to fines will prevent States and the Federal Government from enacting statutes that, like calibrate fines to a defendant’s culpability, thus providing just punish- ment and reducing unwarranted sentencing disparity. But the Government presents a false choice. As was true in our prior cases, and remains so here, legisla- tures are free to enact statutes that constrain judges’ discretion in sentencing— requires only that such provisions be administered in conformance with the Sixth Amendment. Last, the Government argues that requiring juries to determine facts related to fines will cause confusion (be- cause expert testimony might be needed to guide the inquiry); or prejudice the defendant (who might have to deny violating a statute while simultaneously arguing that any violation was minimal); or be impractical (at least when the relevant facts are unknown or unknowable until the trial is completed).8 These arguments rehearse —————— 8 In this vein, the dissent speculates that today’s decision may “nudg[e] our [criminal justice] system” further in favor of plea bargains at the expense of jury trials. Post, at 28. But groups representing the interests of defendants—whom the dissent’s rule purportedly favors— tell us the opposite is true. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 5 (“[E]xempting crimi- nal fines from makes innocent defendants more likely to 16 SOUTHERN UNION CO. v. UNITED STATES Opinion of the Court those made by the dissents in our prior cases. See (BREYER, J., dissenting in part); –320 (O’Connor, J., dissenting); at 330–340 (BREYER, J., dissenting); Ap- –559 (same). Here, as there, they must be rejected. For even if these predictions are ac- curate, the rule the Government espouses is unconstitu- tional. That “should be the end of the matter.” 542 U.S., at 313. But here there is particular reason to doubt the strength of these policy concerns. is now more than a decade old. The reliance interests that underlie many of the Government’s arguments are by this point attenuated. Nor, in our view, does applying ’s rule to criminal fines mark an unexpected extension of the doctrine. Most Circuits to have addressed the issue already embrace this position, see –176; LaGrou Distri- bution ; United States v. Yang, 144 Fed. Appx. 521, 524 (CA6 2005), as did the Government prior to see Brief in Opposition 11, n. 2. In light of the reasons given in this opinion, the dramatic departure from precedent would be to hold criminal fines exempt from * * * We hold that the rule of applies to the imposi- tion of criminal 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. —————— plead guilty”). Cite as: 567 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 11–94 SOUTHERN UNION COMPANY, PETITIONER v.

Justice Breyer

dissenting

Southern Union Co. v. United States

2012-06-21

https://www.courtlistener.com/opinion/802770/southern-union-co-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/802770/

2011-069

Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sen- tencing facts—facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose. Those who framed the Bill of Rights under­ stood that “the finding of a particular fact” of this kind was ordinarily a matter for a judge and not necessarily “within ‘the domain of the jury.’ ” Oregon v. Ice, 555 U.S. 160, 168 (2009) (quoting Harris v. United States, 536 U.S. 545, 557 (2002) (plurality opinion)). The Court’s contrary conclusion, I believe, is ahistorical and will lead to in­ creased problems of unfairness in the administration of our criminal justice system. I Although this dissent does not depend upon the dissents in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, summarizing those earlier dissents will help the reader understand this one. See id., at 523–554 (O’Connor, J., dissenting); id., at 555–556 (BREYER, J., dissenting); see also United States v. Booker, 543 U.S. 220, 327 (2005) (BREYER, J., dissenting in part) (citing cases); Blakely v. Washington, 542 U.S. 296, 329 (2004) 2 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting (BREYER, J., dissenting) (same). The Apprendi dissenters argued that the law had long distinguished between (1) facts that constitute elements of the offense and (2) facts relevant only to sentencing. The term “elements of the offense” means “constituent parts of a crime . . . that the prosecution must prove to sustain a conviction.” Black’s Law Dictionary 597 (9th ed. 2009). The statute that cre­ ates the crime in question typically sets forth those con­ stituent parts. And a jury must find the existence of each such element “beyond a reasonable doubt.” See, e.g., United States v. Gaudin, 515 U.S. 506, 510 (1995); In re Winship, 397 U.S. 358, 364 (1970). Thus, a bank robbery statute might prohibit an offender from (1) taking by force or by intimidation (2) in the pres­ ence of another person (3) a thing of value (4) belonging to, or in custody of, a bank. In that case, the jury can convict only if it finds the existence of each of these four factual “elements” beyond a reasonable doubt. But it need not find other facts beyond a reasonable doubt, for these four factual elements alone constitute the crime. Other facts may be relevant to the length or kind of sentence the court will impose upon a convicted offender. These sentencing facts typically characterize the manner in which the offender carried out the crime or set forth relevant features characterizing the offender. For exam­ ple, in respect to manner, an offender might have carried out a particular bank robbery “with (or without) a gun, which the robber kept hid­ den (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers . . . .” United States Sentencing Commission, Guidelines Manual §1A1.3, Cite as: 567 U. S. ____ (2012) 3 BREYER, J., dissenting p. 3 (Nov. 2011) (USSG). In respect to characteristics of the offender, a current bank robbery conviction might be that offender’s first (or his fourth) criminal conviction. Traditionally, sentencing facts help the sentencing judge determine where, within say a broad statutory range of, say, up to 20 years of imprisonment, the particular bank robber’s punishment should lie. The Apprendi dissenters concluded that the Constitution did not require the jury to find the existence of those facts beyond a reasonable doubt. Rather the law, through its rules, statutes, and the Constitution’s Due Process Clause would typically offer the defendant factfinding protection. See, e.g., Fed. Rule Crim. Proc. 32 (federal presentence report prepared by probation office sets forth facts, which defendant may contest at sentencing proceeding); Almendarez-Torres v. United States, 523 U.S. 224, 239–247 (1998) (constitu­ tional inquiry). The dispute in Apprendi and its line of cases arose after Congress and many States codified these sentencing facts during the sentencing reform movement of the 1970’s and 1980’s. Congress, for example, concluded that too many different judges were imposing too many different sen­ tences upon too many similar offenders who had com- mitted similar crimes in similar ways. It subsequently enacted the Sentencing Reform Act of 1984, creating a federal Sentencing Commission which would produce greater uniformity in sentencing through the promulgation of mandatory uniform Guidelines structuring how judges, in ordinary cases, should typically use sentencing facts to determine sentences. 28 U.S. C. §§991, 994 (2006 ed. and Supp. IV); see also 18 U.S. C. §§3553(b)(1), 3742(e). The Apprendi-line majority agreed that, where a statute set a higher maximum sentence, a Commission might structure how a judge found sentencing facts relevant to the sen­ 4 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting tence imposed below that otherwise applicable maximum, at least if the resulting guidelines were not mandatory. See Booker, 543 U.S., at 245. But the majority held that where a sentencing fact increased the otherwise applicable maximum penalty, that fact had to be found by a jury. Apprendi, 530 U.S., at 490. As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts. Why, asked the dissenters, should Con­ gress’ or a State’s desire for greater sentencing uniformity achieved through statutes seeking more uniform treat­ ment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sen­ tencing fairness. To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maxi­ mum ranges for each crime, thereby avoiding Appren- di’s jury trial requirement. Alternatively, Congress might enact statutes that more specifically tied particular pun­ ishments to each crime (limiting or removing judicial discretion), for example, mandatory minimum statutes. But this system would threaten disproportionality by in- sisting that similar punishments be applied to very dif­ ferent kinds of offense behavior or offenders. Apprendi’s jury trial requirements might also prove unworkable. Con- sider the difficulty of juries’ having to find the differ- ent facts in the bank robbery example I have set forth above. Moreover, how is a defendant, arguing that he did not have a gun, alternatively to argue that, in any event, he did not fire the gun? Finally, the dissenters took a different view of Sixth Amendment history. They believed that under the com­ mon law and at the time the Constitution was ratified, judges, not juries, often found sentencing facts, i.e., facts Cite as: 567 U. S. ____ (2012) 5 BREYER, J., dissenting relevant only to the determination of the offender’s pun­ ishment. See, e.g., Booker, supra, at 329 (BREYER, J., dissenting in part); Apprendi, 530 U.S., at 527–529 (O’Connor, J., dissenting). The dissenters lost the argument. The Court in Ap- prendi held that (other than the fact of a prior conviction) “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id., at 490. But the dissenters’ views help to explain why I continue to believe this Court should not extend Apprendi’s rule be­ yond “ ‘the central sphere of [its] concern.’ ” Ice, 555 U.S., at 172 (quoting Cunningham v. California, 549 U.S. 270, 295 (2007) (KENNEDY, J., dissenting)). That is the Court’s view, too, as set forth in Ice. And I base my dissent here primarily upon Ice. II This case involves sentencing facts, not elements of a crime. The criminal statute at issue constitutes one part of the Resource Conservation and Recovery Act of 1976 (RCRA), which, among others things, authorizes the Envi­ ronmental Protection Agency to create a list of hazardous wastes. 42 U.S. C. §6921. The criminal statute says: “Any person who . . . knowingly treats, stores, or dis­ poses of any hazardous waste identified or listed un­ der [RCRA] . . . without [an RCRA-authorized] permit . . . shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or im­ prisonment not to exceed . . . five years . . . , or both.” §6928(d)(2)(A). No one here denies that this statute creates a crime with four elements: (1) knowing treatment, storage, or disposal of a waste (2) that is hazardous, (3) without a permit, and (4) knowing that the waste has a substantial potential of 6 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting causing harm to others or to the environment. App. 129– 130; see Brief for Petitioner 30. The number of “day[s] of each violation,” however, is not an additional element of the crime. The statute says that the number of days becomes relevant only “upon convic­ tion” of the crime as previously defined. Moreover, the number of days is relevant to application of only one of two kinds of punishment that the statute mentions (fine and imprisonment); one cannot easily read this statute as creating two separate crimes identical but for the punish­ ment. Finally, Congress did not include here, as it some­ times has done, statutory words such as “each day of violation shall constitute a separate offense.” E.g., 47 U.S. C. §223(b); see also 42 U.S. C. §4910(b). Rather, as in many other similar statutes, the statute here sets forth the crime and kinds of punishments (fine and imprison­ ment), while separately specifying facts that determine the maximum punishment of one kind (fines). In this particular case, the indictment set forth a viola­ tion period of 762 days (from “on or about September 19, 2002 until on or about October 19, 2004”). App. 104. The jury’s guilty verdict did not specify the number of days on which the defendant committed the offense. Id., at 141. But after the conviction and sentencing hearing, the judge found that, among other things, the “clear and essentially irrefutable evidence” at trial supported the conclusion set forth in the presentence report, namely, that the maxi­ mum fine available amounted to $50,000 per day for 762 days—or $38.1 million. App. to Pet. for Cert. 47a–48a. The judge imposed a fine of $6 million along with a $12 million community service obligation. App. 162–163. III Apprendi says that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reason­ Cite as: 567 U. S. ____ (2012) 7 BREYER, J., dissenting able doubt.” 530 U.S., at 490. The number of days (be­ yond one) on which the defendant violated this criminal statute is such a fact. Nonetheless, like the majority, I believe that Apprendi’s rule does not automatically control the outcome in this case. That is because this case concerns a fine, not, as in Apprendi, a term of imprisonment. And we made clear in Oregon v. Ice, 555 U.S. 160, that Apprendi does not en­ compass every kind of fact-related sentencing decision that increases the statutory maximum. In Ice, we consid­ ered Apprendi’s application to a sentencing decision about whether two prison sentences for conviction of two sepa­ rate crimes (e.g., illegal drug possession and illegal gun possession) would run concurrently or consecutively. 555 U.S., at 163. An Oregon statute required a concurrent sentence unless the sentencing judge found certain facts. Id., at 165. Those facts could make a large difference in a term of imprisonment. Their presence could mean that a 5-year sentence for illegal drug possession and a 5-year sentence for illegal gun possession would amount to 10 years of imprisonment rather than 5 (indeed, in Ice itself, the judge’s factfinding increased the sentence by 20 years, see id., at 166, and n. 5). Thus, the presence of those “fact[s]” could “increas[e] the penalty” beyond what would otherwise be “the prescribed statutory maximum.” Id., at 167 (internal quotation marks omitted). Nonetheless, we held that the Sixth Amendment permitted a judge—it did not require a jury—to make that factual determination. Id., at 164. We consequently concluded that Apprendi does not encompass every kind of fact-related sentencing decision that increases the statutory maximum. In doing so, we wrote that the “animating principle” of Apprendi’s rule “is the preservation of the jury’s historic role as a bul- wark between the State and the accused at the trial for an alleged offense.” 555 U.S., at 168. And we refused 8 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting to extend Apprendi’s rule to a new category of sentence­ related facts for two basic reasons. First, we considered a historical question, namely, whether “the finding of a particular fact was understood as within ‘the domain of the jury . . . by those who framed the Bill of Rights.’ ” 555 U.S., at 168 (quoting Harris, 536 U.S., at 557). And we read the “historical record” as showing that “in England before the founding of our Na­ tion, and in the early American States,” the jury “played no role in the decision to impose sentences consecutively or concurrently.” 555 U.S., at 168–169 (footnote omitted). Rather, that decision “rested exclusively with the judge.” Id., at 168. Second, recognizing that “administration of a discrete criminal justice system is among the [States’] basic sover­ eign prerogatives,” we considered the need to “respect . . . state sovereignty.” Ibid. We expressed concern lest appli­ cation of Apprendi to this kind of decision inhibit state legislative efforts to establish a fairer sentencing system by helping to bring about more uniform sentencing. Ice, 555 U.S., at 171. We concluded that “[n]either Apprendi nor our Sixth Amendment traditions compel straitjacket­ ing the States” in this respect. Ibid. This case presents another new category of fact-related sentencing decisions, namely, decisions about the amount of a fine. Thus, as the majority recognizes, we must be- gin with a historical question. Ante, at 8. Who—judge or jury—found the facts that determine the amount of a criminal fine “in England before the founding of our Nation, and in the early American States?” Ice, supra, at 169 (footnote omitted). Unlike the majority, I believe the answer to this question is that, in most instances, the judge made that determination. Cite as: 567 U. S. ____ (2012) 9 BREYER, J., dissenting IV A Apprendi relied heavily upon the fact that in “England before the founding of our Nation” the prescribed punish­ ment for more serious crimes, i.e., felonies, was typically fixed—indeed, fixed at death. 530 U.S., at 478–480; see J. Baker, An Introduction to English Legal History 512 (4th ed. 2007); J. Beattie, Crime and the Courts in England, 1660–1800, pp. 409, 450–451 (1986) (hereinafter Beattie); Langbein, The English Criminal Trial on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, pp. 13, 16, 36–37 (A. Schioppa ed. 1987). The facts related to the application of that pun­ ishment were typically elements of the crime. And the jury, not the judge, determined the existence of those facts. See 4 W. Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone); see also Baker, supra, at 512–518 (in practice, the jury or judge could ameliorate capital punishment through application of doctrines such as “pious perjury,” “benefit of clergy,” and reprieves, or the King could grant a royal pardon); Beattie 419–435 (same). Punishment for lesser crimes, however, included fines. And under the common law, the judge, not the jury, de­ termined the amount of the fine and the sentencing facts relevant to the setting of that amount. See Baker, supra, at 512; Beattie 459. Pertinent sentencing facts typically concerned the manner in which the offender committed the crime and the characteristics of that offender. See id., at 456–460. Thus, in 1769, Blackstone wrote: “Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it di­ recting such an offense to be punished by fine, in gen­ eral, without specifying the certain sum.” Blackstone 372 (emphasis added). 10 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting That is because “the quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law. The value of money itself changes from a thou­ sand causes; and, at all events, what is ruin to one man’s fortune, may be a matter of indifference to an­ other.” Id., at 371. Moreover, the “quantum” of pecuniary fines “must frequently vary, from aggravations or otherwise of the offense [i.e., the manner in which the crime was committed], the quality and conditions of the parties [e.g., the offender’s characteristics], and from innu­ merable other circumstances.” Ibid. Similarly, the 18th-century statesman and treatise­ writer Baron Auckland pointed out that in 10th-century England pre-Norman law had attached a fixed financial penalty to each specific crime. Principles of Penal Law 69 (2d ed. 1771). That law, for example, imposed a penalty of 3 cows for perjury and 12 cows for the rape of a maid. Ibid. This system, Baron Auckland added, ignored varia­ tions in, for example, the differing value of a fixed fine, say a cow, over time and among individuals; it also ignored the manner in which the offense was committed and the characteristics of the offender. Id., at 69–72. For those reasons, 18th-century English law ordinarily left “the quantum of the fine” to “the discretion of the Judges.” Id., at 68 (emphasis deleted). “[Because t]he enormity and tendency of the crime, the malice and wilfulness of the intention, the incon­ siderateness and suddenness of the act, the age, facul­ ties, and fortune of the offender, form a chain of complex questions; which can be resolved only by the evidence of each separate charge, and for which no human foresight can provide . . . then arises a neces­ Cite as: 567 U. S. ____ (2012) 11 BREYER, J., dissenting sary appeal to the breast of the judge.” Id., at 72 (em­ phasis added). The only generally applicable limitations on the judge, when imposing the fine, were those contained in the Eng­ lish Bill of Rights and the Magna Carta. 1 W. & M., ch. 2, §11, in 3 Eng. Stat. at Large 440 (forbidding “excessive Fines”); Magna Carta §20, 9 Hen. III, §14, in 1 Eng. Stat. at Large 5 (1225) (fine cannot deprive offender of means of livelihood); see Auckland, supra, at 73 (so interpreting Magna Carta); Blackstone 372–373 (same). To be sure, the jury, not the judge, would determine the facts that made up the elements of the crime, even though those elements might be relevant to whether a fine could apply and, if so, the amount of the fine imposed as well. The common law, for example, defined larceny as the theft of goods that had some intrinsic value and divided the offense into grand larceny, which was theft of goods val­ ued at more than a shilling, and petit larceny, which was theft of goods worth less than a shilling. Blackstone 229– 234; Langbein, supra, at 16–17; see also Beattie 424 (whether “benefit of clergy” was available depended on value stolen). Consequently, the jury would determine the value of the goods in question. In doing so, the jury might “manipulate the sentence by valuing the goods at under a shilling and thereby spare the defendant the capital sanc­ tion.” Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About Apprendi, 82 N. C. L. Rev. 621, 636 (2004). But otherwise “the jury could not influence what other penalties” like fines the defendant might face be­ cause in “non-capital criminal cases” the amount of pun­ ishment “was left solely in the hands of the justices.” Ibid. I cannot determine with any certainty the extent to which 18th-century law placed other relevant limitations upon the judges’ authority to determine fine-related sen­ tencing facts. I have found an 1814 English treatise on 12 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting criminal pleading that says, unlike in cases “where to constitute the offence the value must [only] be of a certain amount,” in cases “where the offence, or its defined meas­ ure of punishment, depends upon the quantity of that excess . . . a variance from the amount averred . . . will be fatal.” 1 T. Starkie, A Treatise on Criminal Pleading 187– 188 (emphasis deleted). It then adds that “in the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value.” Id., at 188. And an 18th-century treatise says that it is questionable whether it is necessary “to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine.” 2 W. Hawkins, A Treatise of the Pleas of the Crown, ch. 25, §75, pp. 234– 235 (3d ed. 1739) (emphasis added). One might read these statements as supporting the majority, for they might in- dicate that, where a statute sets forth facts that deter­ mine a pecuniary penalty, then a jury, not judge, would determine those facts. But whether that is the correct reading is unclear. For one thing, prosecutions for economic crimes were usually brought by injured parties and the “fine” in such cases went in whole or in part to compensate that party for damages. See Beattie 35–36, 192. For example, immedi­ ately following the sentence I have just quoted, Hawkins wrote that it is questionable whether it is necessary “to set forth the Value of the Goods . . . in an Indictment of Lar­ ceny for any other Purpose than to sh[o]w that the Crime amounts to grand Larceny, and to ascertain the Goods, thereby the better to [e]ntitle the Prosecutor to a Resti- tution.” Hawkins, supra, at 234–235 (emphasis added; footnote omitted). Likewise, Blackstone dated English usury law back to a 1545 statute that provided as the penalty that the offending lender shall both “make f[i]ne Cite as: 567 U. S. ____ (2012) 13 BREYER, J., dissenting . . . at the King’s will and pleasure” and forfeit “treble value” of the money borrowed—with half to the King and the other half “to him or them that will sue for the same.” 37 Hen. VIII, ch. 9, in 3 Stat. of Realm 997 (emphasis added); see Blackstone 156; see also M. Ord, An Essay on the Law of Usury 122–123 (3d ed. 1809) (treble-value forfeitures recovered through information qui tam but dis- cretionary fines recovered through criminal indictment). Thus, the statutes at issue were what American courts would later call quasi-civil statutes—part civil, part crimi­ nal; see also Beattie 457. Parliament consequently would have had a special rea­ son for requiring jury determinations of the amount of the pecuniary penalty. And Parliament had the authority to depart from the common law and to insist that juries determine sentencing facts without establishing a generally applicable principle. The relevant question here is how often and for what purposes Parliament did so. Black­ stone himself wrote that such statutes fixing fines in amounts were both in derogation of the common law and uncommon. Blackstone 372. Finally, no one here argues that we adopt the rule actually suggested by the treatises. That rule is not that sentencing is to be done according to value found by the jury but instead that a discrepancy between the value alleged and value found by the jury might render the entire case fatal. See Starkie, supra, at 188. Thus, I cannot place great weight upon these statutes. The parties did not refer to them in their briefs. And in any event, the historical sources taken together make clear that the predominant practice in 18th-century Eng­ land was for a judge, not a jury, to find sentencing facts related to the imposition of a fine. Indeed, the Court in Apprendi conceded the point. It distinguished 18th-century punishments for greater crimes (fixed punishments) from punishments for lesser 14 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting crimes (included fines). 530 U.S., at 480, n. 7. And it wrote that “judges most commonly imposed discretionary ‘sentences’ of fines . . . upon misdemeanants.” Ibid. (em­ phasis added). Insofar as 18th-century English practice helps determine what the Framers would have thought about the scope of the Constitution’s terms—here, the Sixth Amendment’s right to trial by an impartial jury— that practice suggests they would not have expected that right to include determination of sentencing facts relevant only to the imposition of a fine. B Practice in the “early American States” is even less am- biguous. In the colonial era, judges would normally determine the amount of a fine (within an unlimited or otherwise broad range) while also determining related sentencing facts (say, about the manner in which the offender committed the crime and the offender’s character­ istics). Legal historians tell us that in the American colonies a criminal fine was “overwhelmingly the most common of the non-capital punishments,” that in most instances the range of the fine was “apparently without limit except insofar as it was within the expectation of the court that it would be paid,” that the judge established the precise amount of the fine, and that the amount was “tai­ lored individually to the particular case.” Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982). “[C]olonial judges, like their English brethren, possessed a great deal of discre­ tion” and could set the amount of fine “depending upon the nature of the defendant and the crime.” Lillquist, 82 N. C. L. Rev., at 640–641. Enactment of the Constitution and Bill of Rights did not change this practice. Some early American statutes speci­ fied that the judge has discretion to set the amount of the fine while saying nothing about amount. E.g., Crimes Act Cite as: 567 U. S. ____ (2012) 15 BREYER, J., dissenting of 1790, ch. 9, §21, 1 Stat. 117 (any person who bribes a judge “on conviction thereof shall be fined and imprisoned at the discretion of the court”); §28, 1 Stat. 118 (any per­ son who does violence to an ambassador or public min- ister, “on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court”). Others set only a maximum limitation. E.g., Act of Mar. 3, 1791, ch. 15, §39, 1 Stat. 208 (officer of inspection con- victed of oppression or extortion “shall be fined not exceed- ing five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of the court”). In respect to these statutes, Justice Iredell wrote in 1795 that the “common law practice . . . must be adhered to; that is to say, the jury are to find whether the prisoner be guilty, and . . . the court must assess the fine.” United States v. Mundell, 27 F. Cas. 23, 24 (No. 15,834) (CC Va.). Still other statutes, as in England, specifically keyed the amount of the fine to a specific factual finding. A section of the Crimes Act of 1790, for example, said that any person who upon United States property or the high seas “shall take and carry away, with an intent to steal or purloin the personal goods of another . . . shall, on convic­ tion, be fined not exceeding the fourfold value of the prop­ erty so stolen.” §16, 1 Stat. 116. This crime has several elements: (1) taking and (2) carrying away (3) with intent to steal (4) personal goods (5) belonging to another (6) on United States property or the high seas. The jury must find the existence of these facts beyond a reasonable doubt to establish a conviction. But the statute also says that the fine cannot exceed “the fourfold value of the property so stolen.” And it thereby requires the finding of a sen­ tencing fact, namely the value of the stolen property. Who would make this determination—judge or jury? Unlike in 18th-century England, in the United States there is case law directly answering the question. In United States v. Tyler, 7 Cranch 285 (1812), this Court 16 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting considered a federal embargo statute making it a crime to “put” certain “goods” on board a ship with intent to “ex­ port” them outside of the United States. See Act of Jan. 9, 1809, ch. 5, §1, 2 Stat. 506. The statute also provided that an offender’s “goods” and ship “shall be forfeited,” and the offender, “shall, upon conviction,” be “fined a sum, by the court before which the conviction is had, equal to four times the value of such specie, goods, wares and merchan­ dise.” Ibid. The statute thereby required determination of a sentencing fact, namely “the value of such . . . goods.” Was the finding of this sentencing fact for the judge or for the jury? In Tyler, the defendant had been indicted for attempting to export 19 barrels of pearl-ashes, valued at $600. Ante, at 13–14. The jury convicted the defendant, but when doing so, it said that it found the defendant guilty of hav­ ing tried to export “ ‘pot-ashes . . . worth two hundred and eighty dollars.’ ” 7 Cranch, at 285 (emphasis deleted). The defendant appealed, claiming a difference between the jury’s basis for conviction and the crime as charged in the indictment. The difference between the words “pearl­ ashes” and “pot-ashes” is unlikely to have mattered, for pearl-ash is simply a refined grade of pot-ash (potassium carbonate). See T. Barker, R. Dickinson, & D. Hardie, Origins of the Synthetic Alkali Industry in Britain, 23 Economica 158, 163 (1956). Thus, the defendant did not focus upon that difference. Rather, he claimed that the jury’s verdict “was not sufficiently certain as to the value of the property charged in the indictment.” Tyler, 7 Cranch, at 285 (emphasis added). Because $280 differs from $600, the jury had not found him guilty of the crime charged. The Supreme Court, however, found that the jury’s finding as to valuation was not relevant. It upheld the conviction because it was “of the opinion that, under this law, no valuation by the jury was necessary to enable the Cite as: 567 U. S. ____ (2012) 17 BREYER, J., dissenting Circuit Court to impose the proper fine.” Ibid. (emphasis added). The Court did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sen­ tencing fact. See ante, at 14. But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a differ­ ent interpretation. Nor can we say that the Court did not fully consider the matter. Justice Story later authoritatively interpreted Tyler. Sitting as a Circuit Justice in United States v. Mann, 26 F. Cas. 1153 (No. 15,717) (CCNH 1812), he considered the same judge/jury question in respect to the same embargo statute. His court wrote that in “Tyler, 7 Cranch 285, in a prosecution on this same clause, the court held that the fine and quadruple value must be assessed and adjudged by the court, and not by the jury.” Id., at 1153 (emphasis added); see also 26 F. Cas. 1153, 1155 (No. 15,718) (CCNH 1812) (Story, J.) (noting that the Su- preme Court would not have reached its result unless satisfied “that the fine was to be imposed by the court, and not found by the jury”). Thus, nothing in early American practice suggests that the Framers thought that the Sixth Amendment jury trial right encompassed a right to have a jury determine fine­ related sentencing facts. But, to the contrary, there is a Supreme Court opinion, namely Tyler, that holds, or at least strongly indicates, the opposite. C The majority reaches a different conclusion. But the majority does not pose what I believe to be the relevant historical question, namely whether traditionally “in England before the founding of our Nation, and in the 18 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting early American States,” see Ice, 555 U.S., at 169 (footnote omitted), judges, not juries, normally determined fine­ related sentencing facts. Instead, it asks whether a jury, rather than the judge, found those facts in that subclass of cases where a statute “peg[ged] the amount of a fine to the determination of specified facts.” Ante, at 10. It concludes that “the predominant practice was for such facts to be alleged in the indictment and proved to the jury.” Ibid. Putting the question this way invites a circular re­ sponse. As is true of the English usury cases, nothing prohibits a legislature from requiring a jury to find a sentencing fact in a particular subset of cases. And obvi­ ously when a State does so, the jury will indeed have to find those facts. Thus, if, say, 10 States decide to make juries find facts that will set the fine for, say, simple lar­ ceny, then jury practice in those States (during, say, the 19th century) will include the jury’s finding of those sen­ tencing facts. But that circumstance tells us only that in those 10 States for those specific statutes the legislatures so required. It tells us little, if anything, about practices in most States, and it tells us nothing at all about tradi­ tional practice in England or 18th-century America. Nor does a discovery that, say, 10 state legislatures once re­ quired juries, rather than judges, generally to set fines tell us about the scope of the Sixth Amendment’s constitu- tional right to trial by jury. The matter is important be- cause the majority rests its conclusion almost exclusively upon reports of mid-19th-century jury trials in a handful of States, namely Alabama, Illinois, Indiana, Massachusetts, and New Hampshire, and a treatise that bases its state­ ments upon those cases. Ante, at 10–12. Scholars tell us that in fact there were about 10 States—including Alabama, Illinois, and Indiana—that (after ratification of the Sixth Amendment) enacted stat­ utes that required juries, not judges, to determine a de­ fendant’s punishment, including not only the length of a Cite as: 567 U. S. ____ (2012) 19 BREYER, J., dissenting prison term but also the amount of a fine. See Iontcheva, Jury Sentencing as Democratic Practice, 89 Va. L. Rev. 311, 317 (2003); King, Origins of Felony Jury Sentencing in the United States 78 Chi.-Kent L. Rev. 937, 963 (2003). The courts that considered this practice, however, did not believe that the constitutional right to jury trial com­ pelled it. Alabama’s Supreme Court, for example, explained that its State’s jury-sentencing system, which allowed the jury “to determine both the fine and imprisonment,” was in derogation of, and created “an innovation upon[,] the rules of the common law, so far as it transfers [those] powers from the court to the jury.” Hawkins v. State, 3 Stew. & P. 63 (1832). Thus, in State v. Garner, 8 Port. 447 (1839), see ante, at 10, the malicious mischief statute at issue said that the offender would “ ‘be fined in such sum as the jury trying the same may assess, not exceeding four fold the value of the property injured or destroyed.’ ” 8 Port., at 448 (emphasis added). The statute, in other words, trans­ ferred all sentencing facts to the jury and was not illus­ trative of 18th-century practice. Further, the statute said that the “ ‘fine shall be paid to the party injured.’ ” Ibid. The court held that it was consequently proper to allege the amount of the property’s value in the indictment, not because the State’s constitution required any such thing, but because “the fine thus assesse[d] is for the benefit of the injured party”; the case “is, therefore, a quasi civil proceeding”; and for that reason “it would be more con- sonant to the rules of pleading, and to the principles which govern analogous cases, that the indictment should contain an averment of the value of the property.” Ibid.; Ord, Law of Usury, at 122–123 (usury as quasi-civil proceeding). Illinois law was similar. Illinois became a jury­ sentencing State in 1831. See Iontcheva, supra, at 317, n. 28 (citing Act of Feb. 15, 1831, §42, 1830 Ill. Laws 103, 20 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting 113). The Illinois Supreme Court subsequently wrote that, even though “at common law . . . juries . . . never were invested with the power of determining the character or extent of the punishment . . . , we are to be governed entirely the provisions and enactments of our code of criminal jurisprudence.” Blevings v. People, 1 Scam. 172 (1835). And in Clark v. People, 1 Scam. 117 (1833), see ante, at 10, the court made clear that the arson statute at issue “ha[d] changed the common law, . . . [that the] fine equal in value to the property burne[d] is imposed as part of the punishment[; hence,] [t]he indictment . . . should have charged the value of the property de­ stroyed, [for] otherwise it could not properly have been inquired into by the jury.” 1 Scam., at 117. Indiana was another jury-sentencing State. Iontcheva, supra, at 317, n. 28; King, supra, at 937. Indiana case law decided before Indiana changed its system indicates that the judge could decide certain facts required to set the applicable maximum fine. E.g., Morris v. State, 1 Blackf. 37 (1819). But after Indiana became a jury-sentencing State, its courts held, not surprisingly, that under Indiana law the jury must determine sentencing facts. See Ritchey v. State, 7 Blackf. 168, 169 (1844); ante, at 10. Massachusetts presents a special circumstance. The two Massachusetts cases that the majority cites, ante, at 10–11, are larceny cases. Value traditionally was an element of the crime of larceny—both because larceny was theft of goods that had some intrinsic value and because value distinguished grand larceny from petit larceny—and thus juries traditionally had to determine at least some facts about the value of the property stolen. See Black­ stone 229, 234. Massachusetts had abolished the distinc­ tion between grand and petit larceny before its courts decided the two cases the majority cites. See Common- Cite as: 567 U. S. ____ (2012) 21 BREYER, J., dissenting wealth v. Smith, 1 Mass. 245, 246 (1804). But those deci­ sions nonetheless rest in significant part upon the jury’s traditional larceny factfinding role. In Hope v. Common- wealth, 9 Metcalf 134 (1845), for example, the Massachu­ setts Supreme Judicial Court wrote: “The well settled practice, familiar to us all, has been that of stating in the indictment the value of the arti­ cle alleged to have been stolen. . . . The reason for re­ quiring this allegation and finding of value may have been, originally, that a distinction might appear be­ tween the offences of grand and petit larceny . . . . Our statutes . . . prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment.” Id., at 136–137. The “long established practice” to which the court refers is larceny case practice, not practice in all criminal cases. The New Hampshire case to which the majority refers, State v. Goodrich, 46 N. H. 186 (1865), ante, at 11, is also a larceny case that relied on the “established” larceny case practice. The court explained: “The indictment ought to state the value of the arti­ cles stolen that it may appear whether the offence be grand or petit larceny, and such we believe is the set­ tled practice. . . . It has been held in some jurisdic­ tions, that, in case no value is alleged, the offence charged may be regarded as simple larceny, and a conviction be had accordingly . . . but we think it best to adhere to the well established doctrine in such cases . . . . It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring 22 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting the character of the offence to be stated.” 46 N. H., at 187–188. The court wrote nothing to suggest that its holding rested on generally applicable constitutional grounds. And it was in the New Hampshire federal circuit court a half-century earlier when Justice Story had indicated that the Federal Constitution did not impose any such requirement. See Mann, 26 F. Cas., at 1155 (No. 15,718). That leaves the majority’s puzzling 1895 Federal Dis­ trict Court case from Kansas. United States v. Woodruff, 68 F. 536 (D. Kan. 1895); ante, at 11. The circumstances of this case are highly unusual, and the District Court’s reasoning as to why no fine could be set seems to have rested on a combination of statutory construction and constitutional principle. See Woodruff v. United States, 58 F. 766, 767–768 (CC Kan. 1893); Woodruff, 68 F., at 538– 539. Still, I concede this case to the majority—as the lone swallow that cannot make the majority’s summer. Taken together, the 19th-century cases upon which the majority rests its holding do not show anything about practice in the vast majority of States. They concede that common-law practice was to the contrary. And they tell us little about the meaning of the Sixth Amendment. Even were that not so, I do not understand why these mid-19th­ century cases should tell us more about the Constitution’s meaning than, say, the common 20th-century practice of leaving sentencing fact determinations to the judge. This Court apparently once approved the latter practice as constitutional. E.g., McMillan v. Pennsylvania, 477 U.S. 79 (1986); Almendarez-Torres, 523 U.S. 224. And these cases seem more closely related to the present topic. D The upshot is that both 18th-century English common law and 18th-century American law typically provided judges with broad discretion to assess fines. The judge, Cite as: 567 U. S. ____ (2012) 23 BREYER, J., dissenting not the jury, would normally determine fine-related sen­ tencing facts. In this respect, ordinary 18th-century sen­ tencing practice related to fines was unlike sentencing practice in respect to felonies. In the latter case, in Ap- prendi’s view, punishment was normally “fixed” and the judge’s sentencing role was consequently minimal. 530 U.S., at 478–480. In the former case, namely fines, the judge’s role was not normally minimal, but the opposite. For these reasons, I believe that allowing a judge to de­ termine sentencing facts related to imposition of a fine does not invade the historic province of the jury. The historical test that we set forth in Ice is satisfied. V In Ice, we also took account of the practical extent to which extending Apprendi’s rule beyond the “ ‘central sphere of [its] concern’ ” would “diminish” the States’ “role” in “devising solutions to difficult legal problems . . . absent impelling reason to do so.” 555 U.S., at 171–172. In particular, we feared that insisting that juries determine the relevant sentencing facts (concerning concurrent, as opposed to consecutive, punishment) would unjustifiably interfere with a State’s legislative efforts “to rein in the discretion judges possessed at common law to impose consecutive sentences at will.” Id., at 171. It would in- hibit (indeed “straightjacke[t]”) States seeking to make “concurrent sentences the rule, and consecutive sentences the exception.” Ibid. We said that we were “unclear how many other state initiatives would fall” if Apprendi were extended, and that expansion would be “difficult for States to administer.” Id., at 171–172. We believed that these considerations argued strongly against any such “expansion.” Here, the same kinds of considerations similarly argue against “expansion” of Apprendi’s rule. Today’s decision applies to the States. In the 1950’s and thereafter, States 24 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting as well as the Federal Government recognized a serious problem in respect to the sentencing of corporations. Fines, imposed as a punishment upon corporate offenders, were both nonuniform (treating identical offenders differ­ ently) and too often they were set too low. Judges would frequently fine corporations in amounts that failed to approximate the harm a corporation had caused or the gain that it had obtained through its illegal activity, both because often the statutory maximums were low and be- cause often the fines imposed tended to be substantially lower than those maximums. See Gruner, Towards an Organizational Jurisprudence: Transforming Corporate Criminal Law Through Federal Sentencing Reform, 36 Ariz. L. Rev. 407, 408 (1994); Kadish, Some Observa­ tions on the Use of Criminal Sanctions in Enforcing Eco­ nomic Regulations, 30 U. Chi. L. Rev. 423, 435, n. 55 (1963); Nagel & Swenson, Federal Sentencing Guidelines for Corporations: Their Development, Theoretical Underpin­ nings, and Some Thoughts About Their Future, 71 Wash. U. L. Q. 205, 215 (1993). Consequently, the authors of the Model Penal Code adopted a model provision stating that, in respect to of­ fenses involving financial gain, a court could impose an alternative “higher” fine “equal to double the pecuniary gain derived from the offense by the offender.” Model Penal Code §6.03(5), 10A U. L. A. 259 (2001). New York soon thereafter adopted such a provision. N. Y. Penal Law Ann. §80.10(2)(b) (West 2009). And other States followed New York’s example with similar provisions permitting judges to set fines equal to twice the gain to the offender or twice the loss to the victim, thereby helping to diminish disparity while helping potential victims by increasing deterrence. E.g., Conn. Gen. Stat. Ann. §53a–44 (West 2007); Fla. Stat. §775.083(1)(f) (2010). Many of these statutes say in particular that the “court” shall make the finding of gain or loss, in a separate hearing if necessary. Cite as: 567 U. S. ____ (2012) 25 BREYER, J., dissenting E.g., N. Y. Penal Law Ann. §80.00(3) (West 2009); N. J. Stat. Ann. §2C:43–3(e) (West 2005). The Federal Government followed suit. In some in­ stances, such as RCRA, where environmental harm likely varies with the length of the violation period, Congress advanced its uniformity and deterrence goals by tying a dollar-limited fine to the length of time during which that violation took place. 42 U.S. C. §6928(d)(2)(A). In other instances, it did so through a new general gain-or-loss provision, applying to all offenses, including such crimes as corporate fraud, antitrust violations, and environmen­ tal pollution. That provision says: “ALTERNATIVE FINE BASED ON GAIN OR LOSS.—If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process.” 18 U.S. C. §3571(d). To apply Apprendi’s rule to the fines set forth in such statutes, no less than in Ice, would weaken or destroy the States’ and Federal Government’s efforts “to rein in the discretion judges possessed at common law,” Ice, 555 U.S., at 171, over fines. Congress, in enacting such statutes, expected judges, not juries, to determine fine-related sen­ tencing facts because doing so will often involve highly complex determinations. Where, say, major fraud is at issue, the full extent of the loss (or gain) may be unknown at the time of indictment or at any other time prior to the conclusion of the trial. And in an antitrust or an environ­ mental pollution case, the jury may have particular diffi­ culty assessing different estimates of resulting losses. The consequence of the majority’s holding, insisting that juries make such determinations, is likely to diminish the 26 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting fairness of the criminal trial process. A defendant will not find it easy to show the jury at trial that (1) he committed no environmental crime, but (2) in any event, he commit­ ted the crime only on 20 days, not 30. Moreover, the majority’s holding will sometimes permit prosecutors to introduce newly relevant evidence that would otherwise have been kept from the jury on the ground that it was cumulative or unduly prejudicial. If victims’ losses are relevant, the prosecutor may be able to produce witness after witness testifying only about the amount of life savings lost to the fraud. The defendant in this case, for example, thought the introduction of evidence about the discovery of mercury and remediation and evacuation of a nearby apartment complex was unduly prejudicial. Brief for United States 51 (citing App. 15 (defendant’s motion in limine to exclude such evidence)). But even if that were so, that evidence might now be admitted as showing the amount of harm caused or the number of days upon which the defendant’s unlawful activity took place. Administrative problems here may prove more serious than where, as in Apprendi, prison terms were at stake. In part, that is because corporate criminal cases often focus upon complex frauds, criminal price fixing, extended environmental pollution, food-and-drug safety violations, and the like. Both Congress and the Sentencing Commis­ sion have recognized as much. The federal criminal fine statute to which I earlier referred specifically creates an exception where assessing total loss or gain “would unduly complicate or prolong the sentencing process.” 18 U.S. C. §3571(d). Similarly, Sentencing Guidelines applicable to corporations exclude fine provisions for environmental crimes (along with most crimes involving export viola­ tions, food-and-drug safety, agricultural-and-consumer products, and RICO violations) because of the “potential difficulty . . . of defining and computing loss.” Nagel & Swenson, supra, at 256; see USSG §8C2.1, and comment., Cite as: 567 U. S. ____ (2012) 27 BREYER, J., dissenting §8C2.10. Where the defendant is a human being, the Government can avoid problems of proof simply by aban­ doning any effort to obtain a fine; instead, perhaps to the individual defendant’s dismay, the prosecution can seek a longer prison term. Where the criminal defendant is a corporation, however, no such possibility exists. If, as seems likely, it becomes too difficult to prove fine­ related sentencing facts to a jury, legislatures will have to change their statutes. Some may choose to return to highly discretionary sentencing, with its related risks of nonuniformity. Others may link conviction with fines specified in amount, rather like the 10th-century pre- Norman system of three cows for perjury or more modern mandatory minimum penalties. As Blackstone pointed out, those systems produce sentences that are not propor­ tionate; they tend to treat alike offenders who committed the same crime in very different ways. See 4 Blackstone 371–372. The majority believes that 10 years of experience with Apprendi “attenuate[s]” any legal claim of reliance on different rule of constitutional law here. Ante, at 16. Perhaps so. Perhaps that experience shows that Appren- di’s jury trial requirement is workable. But there is an­ other less optimistic possibility. Perhaps that experience, like the canary in a mine­ shaft, tells us only that our criminal justice system is no longer the jury-trial-based adversarial system that it once was. We have noted that “[n]inety-seven percent of fed­ eral convictions and ninety-four percent of state convictions are the result of guilty pleas.” Missouri v. Frye, 566 U. S. ___, ___ (2012) (slip op., at 7). We have added that today “ ‘plea bargaining” is “not some adjunct to the criminal justice system; it is the criminal justice system.’ ” Ibid. (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992)). And in such a system, com­ plex jury trial requirements may affect the strength of a 28 SOUTHERN UNION CO. v. UNITED STATES BREYER, J., dissenting party’s bargaining position rather than the conduct of many actual trials. At the same time, the prosecutor in such a system, perhaps armed with statutes providing for mandatory minimum sentences, can become the ultimate adjudicator. The prosecutor/adjudicator plays an important role in many “European inquisitorial” systems. But those prose­ cutors, unlike ours, typically are trained formally to be more like neutral adjudicators than advocates. Cf. Lang­ bein & Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L. J. 1549, 1559 (1978); see, e.g., Ècole Nationale de la Magistrature. Today’s holding, by unnecessarily complicating the trial process, may prove workable only because it nudges our system slightly fur­ ther in this direction. I see no virtue in doing so. For these reasons, with respect, I dissent

Where a criminal fine is at issue, I believe the Sixth Amendment permits a sentencing judge to determine sen- tencing facts—facts that are not elements of the crime but are relevant only to the amount of the fine the judge will impose Those who framed the Bill of Rights under­ stood that “the finding of a particular fact” of this kind was ordinarily a matter for a judge and not necessarily “within ‘the domain of the jury’ ” 555 US 160, 168 (2009) (quoting Harris v United States, 536 US 545, 557 (2002) (plurality opinion)) The Court’s contrary conclusion, I believe, is ahistorical and will lead to in­ creased problems of unfairness in the administration of our criminal justice system I Although this dissent does not depend upon the dissents in and its progeny, summarizing those earlier dissents will help the reader understand this one See at 523–554 (O’Connor, J, dissenting); at 555–556 (BREYER, J, dissenting); see also United States v 543 US 220, 327 (2005) (BREYER, J, dissenting in part) (citing cases); 2 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting (BREYER, J, dissenting) (same) The dissenters argued that the law had long distinguished between (1) facts that constitute elements of the offense and (2) facts relevant only to sentencing The term “elements of the offense” means “constituent parts of a crime that the prosecution must prove to sustain a conviction” Black’s Law Dictionary 597 (9th ed 2009) The statute that cre­ ates the crime in question typically sets forth those con­ stituent parts And a jury must find the existence of each such element “beyond a reasonable doubt” See, eg, United ; In re Winship, Thus, a bank robbery statute might prohibit an offender from (1) taking by force or by intimidation (2) in the pres­ ence of another person (3) a thing of value (4) belonging to, or in custody of, a bank In that case, the jury can convict only if it finds the existence of each of these four factual “elements” beyond a reasonable doubt But it need not find other facts beyond a reasonable doubt, for these four factual elements alone constitute the crime Other facts may be relevant to the length or kind of sentence the court will impose upon a convicted offender These sentencing facts typically characterize the manner in which the offender carried out the crime or set forth relevant features characterizing the offender For exam­ ple, in respect to manner, an offender might have carried out a particular bank robbery “with (or without) a gun, which the robber kept hid­ den (or brandished), might have frightened (or merely warned), injured seriously (or less seriously), tied up (or simply pushed) a guard, teller, or customer, at night (or at noon), in an effort to obtain money for other crimes (or for other purposes), in the company of a few (or many) other robbers ” United States Sentencing Commission, Guidelines Manual Cite as: 567 U S (2012) 3 BREYER, J, dissenting p 3 (Nov 2011) (USSG) In respect to characteristics of the offender, a current bank robbery conviction might be that offender’s first (or his fourth) criminal conviction Traditionally, sentencing facts help the sentencing judge determine where, within say a broad statutory range of, say, up to 20 years of imprisonment, the particular bank robber’s punishment should lie The dissenters concluded that the Constitution did not require the jury to find the existence of those facts beyond a reasonable doubt Rather the law, through its rules, statutes, and the Constitution’s Due Process Clause would typically offer the defendant factfinding protection See, eg, Fed Rule Crim Proc 32 (federal presentence report prepared by probation office sets forth facts, which defendant may contest at sentencing proceeding); Almendarez-Torres v United States, (constitu­ tional inquiry) The dispute in and its line of cases arose after Congress and many States codified these sentencing facts during the sentencing reform movement of the 1970’s and 1980’s Congress, for example, concluded that too many different judges were imposing too many different sen­ tences upon too many similar offenders who had com- mitted similar crimes in similar ways It subsequently enacted the Sentencing Reform Act of 1984, creating a federal Sentencing Commission which would produce greater uniformity in sentencing through the promulgation of mandatory uniform Guidelines structuring how judges, in ordinary cases, should typically use sentencing facts to determine sentences 28 US C 994 (2006 ed and Supp IV); see also 18 US C 3742(e) The -line majority agreed that, where a statute set a higher maximum sentence, a Commission might structure how a judge found sentencing facts relevant to the sen­ 4 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting tence imposed below that otherwise applicable maximum, at least if the resulting guidelines were not mandatory See But the majority held that where a sentencing fact increased the otherwise applicable maximum penalty, that fact had to be found by a jury As I have said, the dissenters thought that the Sixth Amendment did not require a jury to find any of these sentencing facts Why, asked the dissenters, should Con­ gress’ or a State’s desire for greater sentencing uniformity achieved through statutes seeking more uniform treat­ ment (of similar offenders committing similar offenses in similar ways) suddenly produce new Sixth Amendment jury trial requirements? Those requirements would work against greater sen­ tencing fairness To treat all sentencing facts (where so specified in a statute or rule) as if they were elements of the offense could lead Congress simply to set high maxi­ mum ranges for each crime, thereby avoiding Appren- di’s jury trial requirement Alternatively, Congress might enact statutes that more specifically tied particular pun­ ishments to each crime (limiting or removing judicial discretion), for example, mandatory minimum statutes But this system would threaten disproportionality by in- sisting that similar punishments be applied to very dif­ ferent kinds of offense behavior or offenders ’s jury trial requirements might also prove unworkable Con- sider the difficulty of juries’ having to find the differ- ent facts in the bank robbery example I have set forth above Moreover, how is a defendant, arguing that he did not have a gun, alternatively to argue that, in any event, he did not fire the gun? Finally, the dissenters took a different view of Sixth Amendment history They believed that under the com­ mon law and at the time the Constitution was ratified, judges, not juries, often found sentencing facts, ie, facts Cite as: 567 U S (2012) 5 BREYER, J, dissenting relevant only to the determination of the offender’s pun­ ishment See, eg, at (BREYER, J, dissenting in part); –529 (O’Connor, J, dissenting) The dissenters lost the argument The Court in Ap- prendi held that (other than the fact of a prior conviction) “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” But the dissenters’ views help to explain why I continue to believe this Court should not extend ’s rule be­ yond “ ‘the central sphere of [its] concern’ ” 555 US, at 172 (quoting 295 (2007) (KENNEDY, J, dissenting)) That is the Court’s view, too, as set forth in And I base my dissent here primarily upon II This case involves sentencing facts, not elements of a crime The criminal statute at issue constitutes one part of the Resource Conservation and Recovery Act of 1976 (RCRA), which, among others things, authorizes the Envi­ ronmental Protection Agency to create a list of hazardous wastes 42 US C The criminal statute says: “Any person who knowingly treats, stores, or dis­ poses of any hazardous waste identified or listed un­ der [RCRA] without [an RCRA-authorized] permit shall, upon conviction, be subject to a fine of not more than $50,000 for each day of violation, or im­ prisonment not to exceed five years or both” No one here denies that this statute creates a crime with four elements: (1) knowing treatment, storage, or disposal of a waste (2) that is hazardous, (3) without a permit, and (4) knowing that the waste has a substantial potential of 6 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting causing harm to others or to the environment App 129– 130; see Brief for Petitioner 30 The number of “day[s] of each violation,” however, is not an additional element of the crime The statute says that the number of days becomes relevant only “upon convic­ tion” of the crime as previously defined Moreover, the number of days is relevant to application of only one of two kinds of punishment that the statute mentions (fine and imprisonment); one cannot easily read this statute as creating two separate crimes identical but for the punish­ ment Finally, Congress did not include here, as it some­ times has done, statutory words such as “each day of violation shall constitute a separate offense” Eg, 47 US C see also 42 US C Rather, as in many other similar statutes, the statute here sets forth the crime and kinds of punishments (fine and imprison­ ment), while separately specifying facts that determine the maximum punishment of one kind (fines) In this particular case, the indictment set forth a viola­ tion period of 762 days (from “on or about September 19, 2002 until on or about October 19, 2004”) App 104 The jury’s guilty verdict did not specify the number of days on which the defendant committed the offense But after the conviction and sentencing hearing, the judge found that, among other things, the “clear and essentially irrefutable evidence” at trial supported the conclusion set forth in the presentence report, namely, that the maxi­ mum fine available amounted to $50,000 per day for 762 days—or $381 million App to Pet for Cert 47a–48a The judge imposed a fine of $6 million along with a $12 million community service obligation App 162–163 III says that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reason­ Cite as: 567 U S (2012) 7 BREYER, J, dissenting able doubt” The number of days (be­ yond one) on which the defendant violated this criminal statute is such a fact Nonetheless, like the majority, I believe that ’s rule does not automatically control the outcome in this case That is because this case concerns a fine, not, as in a term of imprisonment And we made clear in that does not en­ compass every kind of fact-related sentencing decision that increases the statutory maximum In we consid­ ered ’s application to a sentencing decision about whether two prison sentences for conviction of two sepa­ rate crimes (eg, illegal drug possession and illegal gun possession) would run concurrently or consecutively 555 US, at 163 An Oregon statute required a concurrent sentence unless the sentencing judge found certain facts Those facts could make a large difference in a term of imprisonment Their presence could mean that a 5-year sentence for illegal drug possession and a 5-year sentence for illegal gun possession would amount to 10 years of imprisonment rather than 5 (indeed, in itself, the judge’s factfinding increased the sentence by 20 years, see and n 5) Thus, the presence of those “fact[s]” could “increas[e] the penalty” beyond what would otherwise be “the prescribed statutory maximum” at 167 (internal quotation marks omitted) Nonetheless, we held that the Sixth Amendment permitted a judge—it did not require a jury—to make that factual determination We consequently concluded that does not encompass every kind of fact-related sentencing decision that increases the statutory maximum In doing so, we wrote that the “animating principle” of ’s rule “is the preservation of the jury’s historic role as a bul- wark between the State and the accused at the trial for an alleged offense” And we refused 8 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting to extend ’s rule to a new category of sentence­ related facts for two basic reasons First, we considered a historical question, namely, whether “the finding of a particular fact was understood as within ‘the domain of the jury by those who framed the Bill of Rights’ ” (quoting Harris, 536 US, at 557) And we read the “historical record” as showing that “in England before the founding of our Na­ tion, and in the early American States,” the jury “played no role in the decision to impose sentences consecutively or concurrently” – (footnote omitted) Rather, that decision “rested exclusively with the judge” Second, recognizing that “administration of a discrete criminal justice system is among the [States’] basic sover­ eign prerogatives,” we considered the need to “respect state sovereignty” We expressed concern lest appli­ cation of to this kind of decision inhibit state legislative efforts to establish a fairer sentencing system by helping to bring about more uniform sentencing We concluded that “[n]either nor our Sixth Amendment traditions compel straitjacket­ ing the States” in this respect This case presents another new category of fact-related sentencing decisions, namely, decisions about the amount of a fine Thus, as the majority recognizes, we must be- gin with a historical question Ante, at 8 Who—judge or jury—found the facts that determine the amount of a criminal fine “in England before the founding of our Nation, and in the early American States?” at (footnote omitted) Unlike the majority, I believe the answer to this question is that, in most instances, the judge made that determination Cite as: 567 U S (2012) 9 BREYER, J, dissenting IV A relied heavily upon the fact that in “England before the founding of our Nation” the prescribed punish­ ment for more serious crimes, ie, felonies, was typically fixed—indeed, fixed at –480; see J An Introduction to English Legal History 512 (4th ed 2007); J Beattie, Crime and the Courts in England, 1660–1800, pp 409, 450–451 (1986) (hereinafter Beattie); The English Criminal Trial on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700–1900, pp 13, 16, 36–37 (A Schioppa ed 1987) The facts related to the application of that pun­ ishment were typically elements of the crime And the jury, not the judge, determined the existence of those facts See 4 W Blackstone, Commentaries on the Laws of England 343 (1769) (hereinafter Blackstone); see also at 512–518 (in practice, the jury or judge could ameliorate capital punishment through application of doctrines such as “pious perjury,” “benefit of clergy,” and reprieves, or the could grant a royal pardon); Beattie 419–435 (same) Punishment for lesser crimes, however, included fines And under the common law, the judge, not the jury, de­ termined the amount of the fine and the sentencing facts relevant to the setting of that amount See at 512; Beattie 459 Pertinent sentencing facts typically concerned the manner in which the offender committed the crime and the characteristics of that offender See at 456–460 Thus, in 1769, Blackstone wrote: “Our statute law has not therefore often ascertained the quantity of fines, nor the common law ever; it di­ recting such an offense to be punished by fine, in gen­ eral, without specifying the certain sum” Blackstone 372 (emphasis added) 10 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting That is because “the quantum, in particular, of pecuniary fines neither can, nor ought to be, ascertained by any invariable law The value of money itself changes from a thou­ sand causes; and, at all events, what is ruin to one man’s fortune, may be a matter of indifference to an­ other” Moreover, the “quantum” of pecuniary fines “must frequently vary, from aggravations or otherwise of the offense [ie, the manner in which the crime was committed], the quality and conditions of the parties [eg, the offender’s characteristics], and from innu­ merable other circumstances” Similarly, the 18th-century statesman and treatise­ writer Baron pointed out that in 10th-century England pre-Norman law had attached a fixed financial penalty to each specific crime Principles of Penal Law 69 (2d ed 1771) That law, for example, imposed a penalty of 3 cows for perjury and 12 cows for the rape of a maid This system, Baron added, ignored varia­ tions in, for example, the differing value of a fixed fine, say a cow, over time and among individuals; it also ignored the manner in which the offense was committed and the characteristics of the offender at 69–72 For those reasons, 18th-century English law ordinarily left “the quantum of the fine” to “the discretion of the Judges” at 68 “[Because t]he enormity and tendency of the crime, the malice and wilfulness of the intention, the incon­ siderateness and suddenness of the act, the age, facul­ ties, and fortune of the offender, form a chain of complex questions; which can be resolved only by the evidence of each separate charge, and for which no human foresight can provide then arises a neces­ Cite as: 567 U S (2012) 11 BREYER, J, dissenting sary appeal to the breast of the judge” (em­ phasis added) The only generally applicable limitations on the judge, when imposing the fine, were those contained in the Eng­ lish Bill of Rights and the Magna Carta 1 W & M, ch 2, in 3 Eng Stat at Large 440 (forbidding “excessive Fines”); Magna Carta 9 Hen III, in 1 Eng Stat at Large 5 (1225) (fine cannot deprive offender of means of livelihood); see (so interpreting Magna Carta); Blackstone 372–373 (same) To be sure, the jury, not the judge, would determine the facts that made up the elements of the crime, even though those elements might be relevant to whether a fine could apply and, if so, the amount of the fine imposed as well The common law, for example, defined larceny as the theft of goods that had some intrinsic value and divided the offense into grand larceny, which was theft of goods val­ ued at more than a shilling, and petit larceny, which was theft of goods worth less than a shilling Blackstone 229– 234; at 16–17; see also Beattie 4 (whether “benefit of clergy” was available depended on value stolen) Consequently, the jury would determine the value of the goods in question In doing so, the jury might “manipulate the sentence by valuing the goods at under a shilling and thereby spare the defendant the capital sanc­ tion” Lillquist, The Puzzling Return of Jury Sentencing: Misgivings About 82 N C L Rev 621, 636 But otherwise “the jury could not influence what other penalties” like fines the defendant might face be­ cause in “non-capital criminal cases” the amount of pun­ ishment “was left solely in the hands of the justices” I cannot determine with any certainty the extent to which 18th-century law placed other relevant limitations upon the judges’ authority to determine fine-related sen­ tencing facts I have found an 1814 English treatise on 12 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting criminal pleading that says, unlike in cases “where to constitute the offence the value must [only] be of a certain amount,” in cases “where the offence, or its defined meas­ ure of punishment, depends upon the quantity of that excess a variance from the amount averred will be fatal” 1 T A Treatise on Criminal Pleading 187– 188 It then adds that “in the case of usury, where the judgment depends upon the quantum taken, the usurious contract must be averred according to the fact; and a variance from it, in evidence, would be fatal, because the penalty is apportioned to the value” And an 18th-century treatise says that it is questionable whether it is necessary “to set forth the Value of the Goods in an Indictment of Trespass for any other Purpose than to aggravate the Fine” 2 W A Treatise of the Pleas of the Crown, ch 25, pp 234– 235 (3d ed 1739) (emphasis added) One might read these statements as supporting the majority, for they might in- dicate that, where a statute sets forth facts that deter­ mine a pecuniary penalty, then a jury, not judge, would determine those facts But whether that is the correct reading is unclear For one thing, prosecutions for economic crimes were usually brought by injured parties and the “fine” in such cases went in whole or in part to compensate that party for damages See Beattie 35–36, 192 For example, immedi­ ately following the sentence I have just quoted, wrote that it is questionable whether it is necessary “to set forth the Value of the Goods in an Indictment of Lar­ ceny for any other Purpose than to sh[o]w that the Crime amounts to grand Larceny, and to ascertain the Goods, thereby the better to [e]ntitle the Prosecutor to a Resti- tution” at 234–235 (emphasis added; footnote omitted) Likewise, Blackstone dated English usury law back to a 1545 statute that provided as the penalty that the offending lender shall both “make f[i]ne Cite as: 567 U S (2012) 13 BREYER, J, dissenting at the ’s will and pleasure” and forfeit “treble value” of the money borrowed—with half to the and the other half “to him or them that will sue for the same” 37 Hen VIII, ch 9, in 3 Stat of Realm 997 (emphasis added); see Blackstone 156; see also M Ord, An Essay on the Law of Usury 122–123 (3d ed 1809) (treble-value forfeitures recovered through information qui tam but dis- cretionary fines recovered through criminal indictment) Thus, the statutes at issue were what American courts would later call quasi-civil statutes—part civil, part crimi­ nal; see also Beattie 457 Parliament consequently would have had a special rea­ son for requiring jury determinations of the amount of the pecuniary penalty And Parliament had the authority to depart from the common law and to insist that juries determine sentencing facts without establishing a generally applicable principle The relevant question here is how often and for what purposes Parliament did so Black­ stone himself wrote that such statutes fixing fines in amounts were both in derogation of the common law and uncommon Blackstone 372 Finally, no one here argues that we adopt the rule actually suggested by the treatises That rule is not that sentencing is to be done according to value found by the jury but instead that a discrepancy between the value alleged and value found by the jury might render the entire case fatal See Thus, I cannot place great weight upon these statutes The parties did not refer to them in their briefs And in any event, the historical sources taken together make clear that the predominant practice in 18th-century Eng­ land was for a judge, not a jury, to find sentencing facts related to the imposition of a fine Indeed, the Court in conceded the point It distinguished 18th-century punishments for greater crimes (fixed punishments) from punishments for lesser 14 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting crimes (included fines) n 7 And it wrote that “judges most commonly imposed discretionary ‘sentences’ of fines upon misdemeanants” (em­ phasis added) Insofar as 18th-century English practice helps determine what the Framers would have thought about the scope of the Constitution’s terms—here, the Sixth Amendment’s right to trial by an impartial jury— that practice suggests they would not have expected that right to include determination of sentencing facts relevant only to the imposition of a fine B Practice in the “early American States” is even less am- biguous In the colonial era, judges would normally determine the amount of a fine (within an unlimited or otherwise broad range) while also determining related sentencing facts (say, about the manner in which the offender committed the crime and the offender’s character­ istics) Legal historians tell us that in the American colonies a criminal fine was “overwhelmingly the most common of the non-capital punishments,” that in most instances the range of the fine was “apparently without limit except insofar as it was within the expectation of the court that it would be paid,” that the judge established the precise amount of the fine, and that the amount was “tai­ lored individually to the particular case” Preyer, Penal Measures in the American Colonies: An Overview, 26 Am J Legal Hist 326, 350 (1982) “[C]olonial judges, like their English brethren, possessed a great deal of discre­ tion” and could set the amount of fine “depending upon the nature of the defendant and the crime” Lillquist, 82 N C L Rev, at 640–641 Enactment of the Constitution and Bill of Rights did not change this practice Some early American statutes speci­ fied that the judge has discretion to set the amount of the fine while saying nothing about amount Eg, Crimes Act Cite as: 567 U S (2012) 15 BREYER, J, dissenting of 1790, ch 9, 1 Stat 117 (any person who bribes a judge “on conviction thereof shall be fined and imprisoned at the discretion of the court”); 1 Stat 118 (any per­ son who does violence to an ambassador or public min- ister, “on conviction, shall be imprisoned not exceeding three years, and fined at the discretion of the court”) Others set only a maximum limitation Eg, Act of Mar 3, 1791, ch 15, 1 Stat 208 (officer of inspection con- victed of oppression or extortion “shall be fined not exceed- ing five hundred dollars, or imprisoned not exceeding six months, or both, at the discretion of the court”) In respect to these statutes, Justice Iredell wrote in 1795 that the “common law practice must be adhered to; that is to say, the jury are to find whether the prisoner be guilty, and the court must assess the fine” United States v Mundell, 27 F Cas 23, (No 15,834) (CC Va) Still other statutes, as in England, specifically keyed the amount of the fine to a specific factual finding A section of the Crimes Act of 1790, for example, said that any person who upon United States property or the high seas “shall take and carry away, with an intent to steal or purloin the personal goods of another shall, on convic­ tion, be fined not exceeding the fourfold value of the prop­ erty so stolen” 1 Stat 116 This crime has several elements: (1) taking and (2) carrying away (3) with intent to steal (4) personal goods (5) belonging to another (6) on United States property or the high seas The jury must find the existence of these facts beyond a reasonable doubt to establish a conviction But the statute also says that the fine cannot exceed “the fourfold value of the property so stolen” And it thereby requires the finding of a sen­ tencing fact, namely the value of the stolen property Who would make this determination—judge or jury? Unlike in 18th-century England, in the United States there is case law directly answering the question In United States v Tyler, this Court 16 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting considered a federal embargo statute making it a crime to “put” certain “goods” on board a ship with intent to “ex­ port” them outside of the United States See Act of Jan 9, 1809, ch 5, 2 Stat 506 The statute also provided that an offender’s “goods” and ship “shall be forfeited,” and the offender, “shall, upon conviction,” be “fined a sum, by the court before which the conviction is had, equal to four times the value of such specie, goods, wares and merchan­ dise” The statute thereby required determination of a sentencing fact, namely “the value of such goods” Was the finding of this sentencing fact for the judge or for the jury? In Tyler, the defendant had been indicted for attempting to export 19 barrels of pearl-ashes, valued at $600 Ante, at 13–14 The jury convicted the defendant, but when doing so, it said that it found the defendant guilty of hav­ ing tried to export “ ‘pot-ashes worth two hundred and eighty dollars’ ” The defendant appealed, claiming a difference between the jury’s basis for conviction and the crime as charged in the indictment The difference between the words “pearl­ ashes” and “pot-ashes” is unlikely to have mattered, for pearl-ash is simply a refined grade of pot-ash (potassium carbonate) See T Barker, R Dickinson, & D Hardie, Origins of the Synthetic Alkali Industry in Britain, 23 Economica 158, 163 (1956) Thus, the defendant did not focus upon that difference Rather, he claimed that the jury’s verdict “was not sufficiently certain as to the value of the property charged in the indictment” Tyler, 7 Cranch, at 285 (emphasis added) Because $280 differs from $600, the jury had not found him guilty of the crime charged The Supreme Court, however, found that the jury’s finding as to valuation was not relevant It upheld the conviction because it was “of the opinion that, under this law, no valuation by the jury was necessary to enable the Cite as: 567 U S (2012) 17 BREYER, J, dissenting Circuit Court to impose the proper fine” (emphasis added) The Court did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sen­ tencing fact See ante, at 14 But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a differ­ ent interpretation Nor can we say that the Court did not fully consider the matter Justice Story later authoritatively interpreted Tyler Sitting as a Circuit Justice in United States v 26 F Cas 1153 (No 15,717) he considered the same judge/jury question in respect to the same embargo statute His court wrote that in “Tyler, 7 Cranch 285, in a prosecution on this same clause, the court held that the fine and quadruple value must be assessed and adjudged by the court, and not by the jury” at 1153 (emphasis added); see also 26 F Cas 1153, (No 15,718) (Story, J) (noting that the Su- preme Court would not have reached its result unless satisfied “that the fine was to be imposed by the court, and not found by the jury”) Thus, nothing in early American practice suggests that the Framers thought that the Sixth Amendment jury trial right encompassed a right to have a jury determine fine­ related sentencing facts But, to the contrary, there is a Supreme Court opinion, namely Tyler, that holds, or at least strongly indicates, the opposite C The majority reaches a different conclusion But the majority does not pose what I believe to be the relevant historical question, namely whether traditionally “in England before the founding of our Nation, and in the 18 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting early American States,” see 555 US, at (footnote omitted), judges, not juries, normally determined fine­ related sentencing facts Instead, it asks whether a jury, rather than the judge, found those facts in that subclass of cases where a statute “peg[ged] the amount of a fine to the determination of specified facts” Ante, at 10 It concludes that “the predominant practice was for such facts to be alleged in the indictment and proved to the jury” Putting the question this way invites a circular re­ sponse As is true of the English usury cases, nothing prohibits a legislature from requiring a jury to find a sentencing fact in a particular subset of cases And obvi­ ously when a State does so, the jury will indeed have to find those facts Thus, if, say, 10 States decide to make juries find facts that will set the fine for, say, simple lar­ ceny, then jury practice in those States (during, say, the 19th century) will include the jury’s finding of those sen­ tencing facts But that circumstance tells us only that in those 10 States for those specific statutes the legislatures so required It tells us little, if anything, about practices in most States, and it tells us nothing at all about tradi­ tional practice in England or 18th-century America Nor does a discovery that, say, 10 state legislatures once re­ quired juries, rather than judges, generally to set fines tell us about the scope of the Sixth Amendment’s constitu- tional right to trial by jury The matter is important be- cause the majority rests its conclusion almost exclusively upon reports of mid-19th-century jury trials in a handful of States, namely Alabama, Illinois, Indiana, Massachusetts, and New Hampshire, and a treatise that bases its state­ ments upon those cases Ante, at 10–12 Scholars tell us that in fact there were about 10 States—including Alabama, Illinois, and Indiana—that (after ratification of the Sixth Amendment) enacted stat­ utes that required juries, not judges, to determine a de­ fendant’s punishment, including not only the length of a Cite as: 567 U S (2012) 19 BREYER, J, dissenting prison term but also the amount of a fine See Jury Sentencing as Democratic Practice, 89 Va L Rev 311, 317 ; Origins of Felony Jury Sentencing in the United States 78 Chi-Kent L Rev 937, The courts that considered this practice, however, did not believe that the constitutional right to jury trial com­ pelled it Alabama’s Supreme Court, for example, explained that its State’s jury-sentencing system, which allowed the jury “to determine both the fine and imprisonment,” was in derogation of, and created “an innovation upon[,] the rules of the common law, so far as it transfers [those] powers from the court to the jury” v State, 3 Stew & P 63 (1832) Thus, in State v Garner, 8 Port 447 see ante, at 10, the malicious mischief statute at issue said that the offender would “ ‘be fined in such sum as the jury trying the same may assess, not exceeding four fold the value of the property injured or destroyed’ ” 8 Port, at 448 (emphasis added) The statute, in other words, trans­ ferred all sentencing facts to the jury and was not illus­ trative of 18th-century practice Further, the statute said that the “ ‘fine shall be paid to the party injured’ ” The court held that it was consequently proper to allege the amount of the property’s value in the indictment, not because the State’s constitution required any such thing, but because “the fine thus assesse[d] is for the benefit of the injured party”; the case “is, therefore, a quasi civil proceeding”; and for that reason “it would be more con- sonant to the rules of pleading, and to the principles which govern analogous cases, that the indictment should contain an averment of the value of the property” ; Ord, Law of Usury, at 122–123 (usury as quasi-civil proceeding) Illinois law was similar Illinois became a jury­ sentencing State in 1831 See n 28 (citing Act of Feb 15, 1831, 1830 Ill Laws 103, 20 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting 113) The Illinois Supreme Court subsequently wrote that, even though “at common law juries never were invested with the power of determining the character or extent of the punishment we are to be governed entirely the provisions and enactments of our code of criminal jurisprudence” Blevings v People, 1 Scam 172 (1835) And in Clark v People, 1 Scam 117 see ante, at 10, the court made clear that the arson statute at issue “ha[d] changed the common law, [that the] fine equal in value to the property burne[d] is imposed as part of the punishment[; hence,] [t]he indictment should have charged the value of the property de­ stroyed, [for] otherwise it could not properly have been inquired into by the jury” 1 Scam, at 117 Indiana was another jury-sentencing State n 28; Indiana case law decided before Indiana changed its system indicates that the judge could decide certain facts required to set the applicable maximum fine Eg, Morris v State, 1 Blackf 37 (1819) But after Indiana became a jury-sentencing State, its courts held, not surprisingly, that under Indiana law the jury must determine sentencing facts See Ritchey v State, 7 Blackf 168, ; ante, at 10 Massachusetts presents a special circumstance The two Massachusetts cases that the majority cites, ante, at 10–11, are larceny cases Value traditionally was an element of the crime of larceny—both because larceny was theft of goods that had some intrinsic value and because value distinguished grand larceny from petit larceny—and thus juries traditionally had to determine at least some facts about the value of the property stolen See Black­ stone 229, 234 Massachusetts had abolished the distinc­ tion between grand and petit larceny before its courts decided the two cases the majority cites See Common- Cite as: 567 U S (2012) 21 BREYER, J, dissenting wealth v Smith, 1 Mass 5, 6 But those deci­ sions nonetheless rest in significant part upon the jury’s traditional larceny factfinding role In Hope v Common- wealth, 9 Metcalf 134 (1845), for example, the Massachu­ setts Supreme Judicial Court wrote: “The well settled practice, familiar to us all, has been that of stating in the indictment the value of the arti­ cle alleged to have been stolen The reason for re­ quiring this allegation and finding of value may have been, originally, that a distinction might appear be­ tween the offences of grand and petit larceny Our statutes prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of opinion that the value of the property alleged to be stolen must be set forth in the indictment” at 136–137 The “long established practice” to which the court refers is larceny case practice, not practice in all criminal cases The New Hampshire case to which the majority refers, State v Goodrich, 46 N H 186 (1865), ante, at 11, is also a larceny case that relied on the “established” larceny case practice The court explained: “The indictment ought to state the value of the arti­ cles stolen that it may appear whether the offence be grand or petit larceny, and such we believe is the set­ tled practice It has been held in some jurisdic­ tions, that, in case no value is alleged, the offence charged may be regarded as simple larceny, and a conviction be had accordingly but we think it best to adhere to the well established doctrine in such cases It may also be suggested, that, in the case of simple larceny, the respondent may be sentenced to pay the owner of the goods stolen, treble the value thereof, which is an additional reason for requiring 22 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting the character of the offence to be stated” 46 N H, at 187–188 The court wrote nothing to suggest that its holding rested on generally applicable constitutional grounds And it was in the New Hampshire federal circuit court a half-century earlier when Justice Story had indicated that the Federal Constitution did not impose any such requirement See 26 F Cas, at (No 15,718) That leaves the majority’s puzzling 1895 Federal Dis­ trict Court case from Kansas United States v 68 F 536 ; ante, at 11 The circumstances of this case are highly unusual, and the District Court’s reasoning as to why no fine could be set seems to have rested on a combination of statutory construction and constitutional principle See v United States, 58 F 766, 767–768 (CC Kan 1893); 68 F, at 538– 539 Still, I concede this case to the majority—as the lone swallow that cannot make the majority’s summer Taken together, the 19th-century cases upon which the majority rests its holding do not show anything about practice in the vast majority of States They concede that common-law practice was to the contrary And they tell us little about the meaning of the Sixth Amendment Even were that not so, I do not understand why these mid-19th­ century cases should tell us more about the Constitution’s meaning than, say, the common 20th-century practice of leaving sentencing fact determinations to the judge This Court apparently once approved the latter practice as constitutional Eg, McMillan v Pennsylvania, 477 US 79 (1986); Almendarez-Torres, And these cases seem more closely related to the present topic D The upshot is that both 18th-century English common law and 18th-century American law typically provided judges with broad discretion to assess fines The judge, Cite as: 567 U S (2012) 23 BREYER, J, dissenting not the jury, would normally determine fine-related sen­ tencing facts In this respect, ordinary 18th-century sen­ tencing practice related to fines was unlike sentencing practice in respect to felonies In the latter case, in Ap- prendi’s view, punishment was normally “fixed” and the judge’s sentencing role was consequently minimal 530 US, at 478–480 In the former case, namely fines, the judge’s role was not normally minimal, but the opposite For these reasons, I believe that allowing a judge to de­ termine sentencing facts related to imposition of a fine does not invade the historic province of the jury The historical test that we set forth in is satisfied V In we also took account of the practical extent to which extending ’s rule beyond the “ ‘central sphere of [its] concern’ ” would “diminish” the States’ “role” in “devising solutions to difficult legal problems absent impelling reason to do so” –172 In particular, we feared that insisting that juries determine the relevant sentencing facts (concerning concurrent, as opposed to consecutive, punishment) would unjustifiably interfere with a State’s legislative efforts “to rein in the discretion judges possessed at common law to impose consecutive sentences at will” It would in- hibit (indeed “straightjacke[t]”) States seeking to make “concurrent sentences the rule, and consecutive sentences the exception” We said that we were “unclear how many other state initiatives would fall” if were extended, and that expansion would be “difficult for States to administer” –172 We believed that these considerations argued strongly against any such “expansion” Here, the same kinds of considerations similarly argue against “expansion” of ’s rule Today’s decision applies to the States In the 1950’s and thereafter, States SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting as well as the Federal Government recognized a serious problem in respect to the sentencing of corporations Fines, imposed as a punishment upon corporate offenders, were both nonuniform (treating identical offenders differ­ ently) and too often they were set too low Judges would frequently fine corporations in amounts that failed to approximate the harm a corporation had caused or the gain that it had obtained through its illegal activity, both because often the statutory maximums were low and be- cause often the fines imposed tended to be substantially lower than those maximums See Gruner, Towards an Organizational Jurisprudence: Transforming Corporate Criminal Law Through Federal Sentencing Reform, 36 Ariz L Rev 407, 408 (1994); Kadish, Some Observa­ tions on the Use of Criminal Sanctions in Enforcing Eco­ nomic Regulations, 30 U Chi L Rev 423, 435, n 55 (1); Nagel & Federal Sentencing Guidelines for Corporations: Their Development, Theoretical Underpin­ nings, and Some Thoughts About Their Future, 71 Wash U L Q 205, 215 (1993) Consequently, the authors of the Model Penal Code adopted a model provision stating that, in respect to of­ fenses involving financial gain, a court could impose an alternative “higher” fine “equal to double the pecuniary gain derived from the offense by the offender” Model Penal Code §603(5), 10A U L A 259 (2001) New York soon thereafter adopted such a provision N Y Penal Law Ann §8010(2)(b) (West 2009) And other States followed New York’s example with similar provisions permitting judges to set fines equal to twice the gain to the offender or twice the loss to the victim, thereby helping to diminish disparity while helping potential victims by increasing deterrence Eg, Conn Gen Stat Ann (West 2007); Fla Stat §775083(1)(f) (2010) Many of these statutes say in particular that the “court” shall make the finding of gain or loss, in a separate hearing if necessary Cite as: 567 U S (2012) 25 BREYER, J, dissenting Eg, N Y Penal Law Ann §8000(3) (West 2009); N J Stat Ann (West 2005) The Federal Government followed suit In some in­ stances, such as RCRA, where environmental harm likely varies with the length of the violation period, Congress advanced its uniformity and deterrence goals by tying a dollar-limited fine to the length of time during which that violation took place 42 US C In other instances, it did so through a new general gain-or-loss provision, applying to all offenses, including such crimes as corporate fraud, antitrust violations, and environmen­ tal pollution That provision says: “ALTERNATIVE FINE BASED ON GAIN OR LOSS—If any person derives pecuniary gain from the offense, or if the offense results in pecuniary loss to a person other than the defendant, the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss, unless imposition of a fine under this subsection would unduly complicate or prolong the sentencing process” 18 US C §3571(d) To apply ’s rule to the fines set forth in such statutes, no less than in would weaken or destroy the States’ and Federal Government’s efforts “to rein in the discretion judges possessed at common law,” 555 US, over fines Congress, in enacting such statutes, expected judges, not juries, to determine fine-related sen­ tencing facts because doing so will often involve highly complex determinations Where, say, major fraud is at issue, the full extent of the loss (or gain) may be unknown at the time of indictment or at any other time prior to the conclusion of the trial And in an antitrust or an environ­ mental pollution case, the jury may have particular diffi­ culty assessing different estimates of resulting losses The consequence of the majority’s holding, insisting that juries make such determinations, is likely to diminish the 26 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting fairness of the criminal trial process A defendant will not find it easy to show the jury at trial that (1) he committed no environmental crime, but (2) in any event, he commit­ ted the crime only on 20 days, not 30 Moreover, the majority’s holding will sometimes permit prosecutors to introduce newly relevant evidence that would otherwise have been kept from the jury on the ground that it was cumulative or unduly prejudicial If victims’ losses are relevant, the prosecutor may be able to produce witness after witness testifying only about the amount of life savings lost to the fraud The defendant in this case, for example, thought the introduction of evidence about the discovery of mercury and remediation and evacuation of a nearby apartment complex was unduly prejudicial Brief for United States 51 (citing App 15 (defendant’s motion in limine to exclude such evidence)) But even if that were so, that evidence might now be admitted as showing the amount of harm caused or the number of days upon which the defendant’s unlawful activity took place Administrative problems here may prove more serious than where, as in prison terms were at stake In part, that is because corporate criminal cases often focus upon complex frauds, criminal price fixing, extended environmental pollution, food-and-drug safety violations, and the like Both Congress and the Sentencing Commis­ sion have recognized as much The federal criminal fine statute to which I earlier referred specifically creates an exception where assessing total loss or gain “would unduly complicate or prolong the sentencing process” 18 US C §3571(d) Similarly, Sentencing Guidelines applicable to corporations exclude fine provisions for environmental crimes (along with most crimes involving export viola­ tions, food-and-drug safety, agricultural-and-consumer products, and RICO violations) because of the “potential difficulty of defining and computing loss” Nagel & ; see USSG §8C21, and comment, Cite as: 567 U S (2012) 27 BREYER, J, dissenting §8C210 Where the defendant is a human being, the Government can avoid problems of proof simply by aban­ doning any effort to obtain a fine; instead, perhaps to the individual defendant’s dismay, the prosecution can seek a longer prison term Where the criminal defendant is a corporation, however, no such possibility exists If, as seems likely, it becomes too difficult to prove fine­ related sentencing facts to a jury, legislatures will have to change their statutes Some may choose to return to highly discretionary sentencing, with its related risks of nonuniformity Others may link conviction with fines specified in amount, rather like the 10th-century pre- Norman system of three cows for perjury or more modern mandatory minimum penalties As Blackstone pointed out, those systems produce sentences that are not propor­ tionate; they tend to treat alike offenders who committed the same crime in very different ways See 4 Blackstone 371–372 The majority believes that 10 years of experience with “attenuate[s]” any legal claim of reliance on different rule of constitutional law here Ante, at 16 Perhaps so Perhaps that experience shows that Appren- di’s jury trial requirement is workable But there is an­ other less optimistic possibility Perhaps that experience, like the canary in a mine­ shaft, tells us only that our criminal justice system is no longer the jury-trial-based adversarial system that it once was We have noted that “[n]inety-seven percent of fed­ eral convictions and ninety-four percent of state convictions are the result of guilty pleas” Missouri v Frye, 566 U S (2012) (slip op, at 7) We have added that today “ ‘plea bargaining” is “not some adjunct to the criminal justice system; it is the criminal justice system’ ” (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L J 1909, 1912 (1992)) And in such a system, com­ plex jury trial requirements may affect the strength of a 28 SOUTHERN UNION CO v UNITED STATES BREYER, J, dissenting party’s bargaining position rather than the conduct of many actual trials At the same time, the prosecutor in such a system, perhaps armed with statutes providing for mandatory minimum sentences, can become the ultimate adjudicator The prosecutor/adjudicator plays an important role in many “European inquisitorial” systems But those prose­ cutors, unlike ours, typically are trained formally to be more like neutral adjudicators than advocates Cf Lang­ bein & Weinreb, Continental Criminal Procedure: “Myth” and Reality, 87 Yale L J 1549, 1559 (1978); see, eg, Ècole Nationale de la Magistrature Today’s holding, by unnecessarily complicating the trial process, may prove workable only because it nudges our system slightly fur­ ther in this direction I see no virtue in doing so For these reasons, with respect, I dissent

Justice Alito

majority

Monsanto Co. v. Geertson Seed Farms

2010-06-21

https://www.courtlistener.com/opinion/149005/monsanto-co-v-geertson-seed-farms/

https://www.courtlistener.com/api/rest/v3/clusters/149005/

2009-080

This case arises out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa. The District Court held that APHIS violated the National Environ­ mental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S. C. §4321 et seq., by issuing its deregulation deci­ sion without first completing a detailed assessment of the environmental consequences of its proposed course of action. To remedy that violation, the District Court vacated the agency’s decision completely deregulating the alfalfa variety in question; ordered APHIS not to act on the deregulation petition in whole or in part until it had completed a detailed environmental review; and enjoined almost all future planting of the genetically engineered alfalfa pending the completion of that review. The Court of Appeals affirmed the District Court’s entry of permanent injunctive relief. The main issue now in dispute concerns the breadth of that relief. For the reasons set forth below, we reverse and remand for further proceedings. 2 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court I A The Plant Protection Act (PPA), 114 Stat. 438, 7 U.S. C. §7701 et seq., provides that the Secretary of the Depart­ ment of Agriculture (USDA) may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.” §7711(a). The Secretary has delegated that authority to APHIS, a division of the USDA. 7 CFR §§2.22(a), 2.80(a)(36) (2010). Acting pursuant to that delegation, APHIS has promulgated regulations governing “the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests.” See §340.0(a)(2) and n. 1. Under those regulations, certain genetically engi­ neered plants are presumed to be “plant pests”—and thus “regulated articles” under the PPA—until APHIS deter­ mines otherwise. See ibid.; §§340.1, 340.2, 340.6; see also App. 183. However, any person may petition APHIS for a determination that a regulated article does not present a plant pest risk and therefore should not be subject to the applicable regulations. 7 U.S. C. §7711(c)(2); 7 CFR §340.6. APHIS may grant such a petition in whole or in part. §340.6(d)(3). In deciding whether to grant nonregulated status to a genetically engineered plant variety, APHIS must comply with NEPA, which requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (EIS) for “every recommendation or report on proposals for legislation and other major Federal actio[n] significantly affecting the quality of the human environ­ ment.” 42 U.S. C. §4332(2)(C). The statutory text “speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.” Kleppe v. Sierra Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court Club, 427 U.S. 390, 410, n. 20 (1976). An agency need not complete an EIS for a particular proposal if it finds, on the basis of a shorter “environ­ mental assessment” (EA), that the proposed action will not have a significant impact on the environment. 40 CFR §§1508.9(a), 1508.13 (2009). Even if a particular agency proposal requires an EIS, applicable regulations allow the agency to take at least some action in furtherance of that proposal while the EIS is being prepared. See §1506.1(a) (“no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives”); §1506.1(c) (“While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not under­ take in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action” satisfies certain requirements). B This case involves Roundup Ready Alfalfa (RRA), a kind of alfalfa crop that has been genetically engineered to be tolerant of glyphosate, the active ingredient of the herbi­ cide Roundup. Petitioner Monsanto Company (Monsanto) owns the intellectual property rights to RRA. Monsanto licenses those rights to co-petitioner Forage Genetics International (FGI), which is the exclusive developer of RRA seed. APHIS initially classified RRA as a regulated article, but in 2004 petitioners sought nonregulated status for two strains of RRA. In response, APHIS prepared a draft EA assessing the likely environmental impact of the requested deregulation. It then published a notice in the Federal Register advising the public of the deregulation petition and soliciting public comments on its draft EA. After 4 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court considering the hundreds of public comments that it re­ ceived, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally and with­ out preparing an EIS. Prior to this decision, APHIS had authorized almost 300 field trials of RRA conducted over a period of eight years. App. 348. Approximately eight months after APHIS granted RRA nonregulated status, respondents (two conventional alfalfa seed farms and environmental groups concerned with food safety) filed this action against the Secretary of Agricul­ ture and certain other officials in Federal District Court, challenging APHIS’s decision to completely deregulate RRA. Their complaint alleged violations of NEPA, the Endangered Species Act of 1973 (ESA), 87 Stat. 884, 16 U.S. C. §1531 et seq., and the PPA. Respondents did not seek preliminary injunctive relief pending resolution of those claims. Hence, RRA enjoyed nonregulated status for approximately two years. During that period, more than 3,000 farmers in 48 States planted an estimated 220,000 acres of RRA. App. 350. In resolving respondents’ NEPA claim, the District Court accepted APHIS’s determination that RRA does not have any harmful health effects on humans or livestock. App. to Pet. for Cert. 43a; accord, id., at 45a. Neverthe­ less, the District Court held that APHIS violated NEPA by deregulating RRA without first preparing an EIS. In particular, the court found that APHIS’s EA failed to answer substantial questions concerning two broad conse­ quences of its proposed action: first, the extent to which complete deregulation would lead to the transmission of the gene conferring glyphosate tolerance from RRA to organic and conventional alfalfa; and, second, the extent to which the introduction of RRA would contribute to the development of Roundup-resistant weeds. Id., at 52a. In light of its determination that the deregulation decision ran afoul of NEPA, the District Court dismissed without Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court prejudice respondents’ claims under the ESA and PPA. After these rulings, the District Court granted petition­ ers permission to intervene in the remedial phase of the lawsuit. The court then asked the parties to submit pro­ posed judgments embodying their preferred means of remedying the NEPA violation. APHIS’s proposed judg­ ment would have ordered the agency to prepare an EIS, vacated the agency’s deregulation decision, and replaced that decision with the terms of the judgment itself. Id., at 184a (proposed judgment providing that “[the federal] defendants’ [June 14,] 2005 Determination of Nonregu­ lated Status for Alfalfa Genetically Engineered for Toler­ ance to the Herbicide Glyphosate is hereby vacated and replaced by the terms of this judgment” (emphasis added)). The terms of the proposed judgment, in turn, would have permitted the continued planting of RRA pending comple­ tion of the EIS, subject to six restrictions. Those restric­ tions included, among other things, mandatory isolation distances between RRA and non-genetically-engineered alfalfa fields in order to mitigate the risk of gene flow; mandatory harvesting conditions; a requirement that planting and harvesting equipment that had been in contact with RRA be cleaned prior to any use with conven­ tional or organic alfalfa; identification and handling re­ quirements for RRA seed; and a requirement that all RRA seed producers and hay growers be under contract with either Monsanto or FGI and that their contracts require compliance with the other limitations set out in the pro­ posed judgment. The District Court rejected APHIS’s proposed judgment. In its preliminary injunction, the District Court prohibited almost all future planting of RRA pending APHIS’s com­ pletion of the required EIS. But in order to minimize the harm to farmers who had relied on APHIS’s deregulation decision, the court expressly allowed those who had al­ ready purchased RRA to plant their seeds until March 30, 6 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court 2007. Id., at 58a. In its subsequently entered permanent injunction and judgment, the court (1) vacated APHIS’s deregulation decision; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto’s deregula­ tion petition; (3) enjoined the planting of any RRA in the United States after March 30, 2007, pending APHIS’s completion of the required EIS; and (4) imposed certain conditions (suggested by APHIS) on the handling and identification of already-planted RRA. Id., at 79a, 109a. The District Court denied petitioners’ request for an evi­ dentiary hearing. The Government, Monsanto, and FGI appealed, chal­ lenging the scope of the relief granted but not disputing the existence of a NEPA violation. See Geertson Seed Farms v. Johanns, 570 F.3d 1130, 1136 (2009). A divided panel of the Court of Appeals for the Ninth Circuit af­ firmed. Based on its review of the record, the panel first concluded that the District Court had “recognized that an injunction does not ‘automatically issue’ when a NEPA violation is found” and had instead based its issuance of injunctive relief on the four-factor test traditionally used for that purpose. Id., at 1137. The panel held that the District Court had not committed clear error in making any of the subsidiary factual findings on which its assess­ ment of the four relevant factors was based. And the panel rejected the claim that the District Court had not given sufficient deference to APHIS’s expertise concerning the likely effects of allowing continued planting of RRA on a limited basis. In the panel’s view, APHIS’s proposed interim measures would have perpetuated a system that had been found by the District Court to have caused envi­ ronmental harm in the past. Id., at 1139. Hence, the panel concluded that the District Court had not abused its discretion “in choosing to reject APHIS’s proposed mitiga­ tion measures in favor of a broader injunction to prevent more irreparable harm from occurring.” Ibid. Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court The panel majority also rejected petitioners’ alternative argument that the District Court had erred in declining to hold an evidentiary hearing before entering its permanent injunction. Writing in dissent, Judge N. Randy Smith disagreed with that conclusion. In his view, the District Court was required to conduct an evidentiary hearing before issuing a permanent injunction unless the facts were undisputed or the adverse party expressly waived its right to such a hearing. Neither of those two exceptions, he found, applied here. We granted certiorari. 558 U. S. __ (2010). II A At the threshold, respondents contend that petitioners lack standing to seek our review of the lower court rulings at issue here. We disagree. Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 557 U. S. ___, ___ (2009) (slip op., at 8). Petitioners here sat­ isfy all three criteria. Petitioners are injured by their inability to sell or license RRA to prospective customers until such time as APHIS completes the required EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court. Respondents do not dispute that petitioners would have standing to contest the District Court’s permanent injunc­ tion order if they had pursued a different litigation strat­ egy. Instead, respondents argue that the injury of which petitioners complain is independently caused by a part of the District Court’s order that petitioners failed to chal­ lenge, namely, the vacatur of APHIS’s deregulation deci­ sion. The practical consequence of the vacatur, respon­ 8 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court dents contend, was to restore RRA to the status of a regu­ lated article; and, subject to certain exceptions not appli­ cable here, federal regulations ban the growth and sale of regulated articles. Because petitioners did not specifically challenge the District Court’s vacatur, respondents reason, they lack standing to challenge a part of the District Court’s order (i.e., the injunction) that does not cause petitioners any injury not also caused by the vacatur. See Brief for Respondents 19–20. Respondents’ argument fails for two independent rea­ sons. First, although petitioners did not challenge the vacatur directly, they adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction. Throughout the remedial phase of this litigation, one of the main disputes between the parties has been whether the District Court was required to adopt APHIS’s proposed judgment. See, e.g., Intervenor-Appellants’ Opening Brief in No. 07–16458 etc. (CA9), p. 59 (urging the Court of Appeals to “vacate the district court’s judgment and remand this case to the district court with instructions to enter APHIS’s proposed relief”); Opening Brief of Federal Defendants-Appellants in No. 16458 etc. (CA9), pp. 21, 46 (“The blanket injunc­ tion should be narrowed in accordance with APHIS’s proposal”); see also Tr. of Oral Arg. 6, 25–27, 53–54. That judgment would have replaced the vacated deregulation decision with an order expressly allowing continued plant­ ing of RRA subject to certain limited conditions. App. to Pet. for Cert. 184a (proposed judgment providing that “[the federal] defendants’ 14 June 2005 Determination of Nonregulated Status for Alfalfa Genetically Engineered for Tolerance to the Herbicide Glyphosate is hereby va­ cated and replaced by the terms of this judgment” (empha­ sis added)). Accordingly, if the District Court had adopted the agency’s suggested remedy, there would still be au­ thority for the continued planting of RRA, because there Cite as: 561 U. S. ____ (2010) 9 Opinion of the Court would, in effect, be a new deregulation decision.1 Second, petitioners in any case have standing to chal­ lenge the part of the District Court’s order enjoining par­ tial deregulation. Respondents focus their standing ar­ gument on the part of the judgment enjoining the planting of RRA, but the judgment also states that “[b]efore grant­ ing Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” Id., at 108a (emphasis added); see also id., at 79a (“The Court will enter a final judgment . . . ordering the government to prepare an EIS before it makes a deci­ sion on Monsanto’s deregulation petition”). As respon­ dents concede, that part of the judgment goes beyond the vacatur of APHIS’s deregulation decision. See Tr. of Oral Arg. 37, 46. At oral argument, respondents contended that the re­ triction on APHIS’s ability to effect a partial deregulation of RRA does not cause petitioners “an actual or an immi­ nent harm.” Id., at 39–40. In order for a partial deregula­ tion to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.” Id., at 39. Because petitioners cannot prove that those two events would happen, respon­ dents contended, the asserted harm caused by the District Court’s partial deregulation ban is too speculative to satisfy the actual or imminent injury requirement. We reject this argument. If the injunction were lifted, we do not see why the District Court would have to re­ mand the matter to the agency in order for APHIS to effect a partial deregulation. And even if a remand were —————— 1 We need not decide whether the District Court had the authority to replace the vacated agency order with an injunction of its own making. The question whether petitioners are entitled to the relief that they seek goes to the merits, not to standing. 10 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court required, we perceive no basis on which the District Court could decline to remand the matter to the agency so that it could determine whether to pursue a partial deregulation during the pendency of the EIS process. Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing. It is undisputed that peti­ tioners have submitted a deregulation petition and that a partial deregulation of the kind embodied in the agency’s proposed judgment would afford petitioners much of the relief that they seek; it is also undisputed that, absent the District Court’s order, APHIS could attempt to effect such a partial deregulation pending its completion of the EIS. See id., at 7–8, 25–27, 38. For purposes of resolving the particular standing question before us, we need not decide whether or to what extent a party challenging an injunc­ tion that bars an agency from granting certain relief must show that the agency would be likely to afford such relief if it were free to do so. In this case, as is clear from APHIS’s proposed judgment and from its briefing throughout the remedial phase of this litigation, the agency takes the view that a partial deregulation reflect­ ing its proposed limitations is in the public interest. Thus, there is more than a strong likelihood that APHIS would partially deregulate RRA were it not for the District Court’s injunction. The District Court’s elimination of that likelihood is plainly sufficient to establish a constitu­ tionally cognizable injury. Moreover, as respondents essentially conceded at oral argument, that injury would be redressed by a favorable decision here, since “vacating the current injunction . . . will allow [petitioners] to go back to the agency, [to] seek a partial deregulation,” even if the District Court’s vacatur of APHIS’s deregulation decision is left intact. Id., at 38. We therefore hold that Cite as: 561 U. S. ____ (2010) 11 Opinion of the Court petitioners have standing to seek this Court’s review.2 B We next consider petitioners’ contention that respon­ dents lack standing to seek injunctive relief. See Daim lerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff must demonstrate standing separately for each form of relief sought” (internal quotation marks omitted)). Petitioners argue that respondents have failed to show that any of the named respondents is likely to suffer a constitutionally cognizable injury absent injunctive relief. See Brief for Petitioners 40. We disagree. Respondents include conventional alfalfa farmers. Emphasizing “the undisputed concentration of alfalfa seed farms,” the District Court found that those farmers had “established a ‘reasonable probability’ that their organic and conventional alfalfa crops will be infected with the engineered gene” if RRA is completely deregulated. App. to Pet. for Cert. 50a.3 A substantial risk of gene flow —————— 2 We do not rest “the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense.” See post, at 7 (STEVENS, J., dissenting). Even if the District Court’s order prohibiting a partial deregulation applies only to “the particular partial deregulation order proposed to the court by APHIS,” see post, at 8, petitioners would still have standing to chal­ lenge that aspect of the order. 3At least one of the respondents in this case specifically alleges that he owns an alfalfa farm in a prominent seed-growing region and faces a significant risk of contamination from RRA. See Record, Doc. 62, pp. 1– 2; id., ¶10, at 3–4 (Declaration of Phillip Geertson in Support of Plan­ tiffs’ Motion for Summary Judgment) (“Since alfalfa is pollinated by honey, bumble and leafcutter bees, the genetic contamination of the Roundup Ready seed will rapidly spread through the seed growing regions. Bees have a range of at least two to ten miles, and the alfalfa seed farms are much more concentrated”). Other declarations in the record provide further support for the District Court’s conclusion that the deregulation of RRA poses a significant risk of contamination to respondents’ crops. See, e.g., id., Doc. 53, ¶9, at 2 (Declaration of Jim Munsch) (alleging risk of “significant contamination . . . due to the 12 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court injures respondents in several ways. For example, re­ spondents represent that, in order to continue marketing their product to consumers who wish to buy non­ genetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extent their crops have been contaminated. See, e.g., Record, Doc. 62, p. 5 (Declaration of Phillip Geertson in Support of Plantiffs’ Motion for Summary Judgment) (hereinafter Geertson Declaration) (“Due to the high potential for contamination, I will need to test my crops for the pres­ ence of genetically engineered alfalfa seed. This testing will be a new cost to my seed business and we will have to raise our seed prices to cover these costs, making our prices less competitive”); id., Doc. 57, p. 4 (Declaration of Patrick Trask in Support of Plantiff’s Motion for Summary Judgment) (“To ensure that my seeds are pure, I will need to test my crops and obtain certification that my seeds are free of genetically engineered alfalfa”); see also Record, Doc. 55, p. 2 (“There is zero tolerance for contaminated seed in the organic market”). Respondents also allege that the risk of gene flow will cause them to take certain meas­ ures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically­ engineered alfalfa. See, e.g., Geertson Declaration 3 (not­ ing the “increased cost of alfalfa breeding due to potential for genetic contamination”); id., at 6 (“Due to the threat of contamination, I have begun contracting with growers outside of the United States to ensure that I can supply genetically pure, conventional alfalfa seed. Finding new growers has already resulted in increased administrative —————— compact geographic area of the prime alfalfa seed producing areas and the fact that pollen is distributed by bees that have large natural range of activity”); App. ¶8, p. 401 (Declaration of Marc Asumendi) (“Roundup alfalfa seed fields are currently being planted in all the major alfalfa seed production areas with little regard to contamination to non-GMO seed production fields”). Cite as: 561 U. S. ____ (2010) 13 Opinion of the Court costs at my seed business”). Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. Those harms are readily attributable to APHIS’s deregulation decision, which, as the District Court found, gives rise to a significant risk of gene flow to non-genetically-engineered varieties of alfalfa. Finally, a judicial order prohibiting the growth and sale of all or some genetically engineered alfalfa would remedy respondents’ injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa crops. We therefore conclude that respon­ dents have constitutional standing to seek injunctive relief from the complete deregulation order at issue here. Petitioners appear to suggest that respondents fail to satisfy the “zone of interests” test we have previously articulated as a prudential standing requirement in cases challenging agency compliance with particular statutes. See Reply Brief for Petitioners 12 (arguing that protection against the risk of commercial harm “is not an interest that NEPA was enacted to address”); Bennett v. Spear, 520 U.S. 154, 162–163 (1997). That argument is unpersua­ sive because, as the District Court found, respondents’ injury has an environmental as well as an economic com­ ponent. See App. to Pet. for Cert. 49a. In its ruling on the merits of respondents’ NEPA claim, the District Court held that the risk that the RRA gene conferring gly­ phosate resistance will infect conventional and organic alfalfa is a significant environmental effect within the meaning of NEPA. Petitioners did not appeal that part of the court’s ruling, and we have no occasion to revisit it here. Respondents now seek injunctive relief in order to avert the risk of gene flow to their crops—the very same effect that the District Court determined to be a signifi­ cant environmental concern for purposes of NEPA. The 14 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court mere fact that respondents also seek to avoid certain economic harms that are tied to the risk of gene flow does not strip them of prudential standing. In short, respondents have standing to seek injunctive relief, and petitioners have standing to seek this Court’s review of the Ninth Circuit’s judgment affirming the entry of such relief. We therefore proceed to the merits of the case. III A The District Court sought to remedy APHIS’s NEPA violation in three ways: First, it vacated the agency’s decision completely deregulating RRA; second, it enjoined APHIS from deregulating RRA, in whole or in part, pend­ ing completion of the mandated EIS; and third, it entered a nationwide injunction prohibiting almost all future planting of RRA. Id., at 108a–110a. Because petitioners and the Government do not argue otherwise, we assume without deciding that the District Court acted lawfully in vacating the deregulation decision. See Tr. of Oral Arg. 7 (“[T]he district court could have vacated the order in its entirety and sent it back to the agency”); accord, id., at 15– 16. We therefore address only the latter two aspects of the District Court’s judgment. Before doing so, however, we provide a brief overview of the standard governing the entry of injunctive relief. B “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suf­ fered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to com­ pensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy Cite as: 561 U. S. ____ (2010) 15 Opinion of the Court in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L. L. C., 547 U.S. 388, 391 (2006). The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 21–23). Petitioners argue that the lower courts in this case proceeded on the erroneous assumption that an injunction is generally the appropriate remedy for a NEPA violation. In particular, petitioners note that the District Court cited pre-Winter Ninth Circuit precedent for the proposition that, in “ ‘the run of the mill NEPA case,’ ” an injunction delaying the contemplated government project is proper “ ‘until the NEPA violation is cured.’ ” App. to Pet. for Cert. 65a (quoting Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (CA9 2002)); see also App. to Pet. for Cert. 55a (quoting same language in preliminary injunction order). In addition, petitioners observe, the District Court and the Court of Appeals in this case both stated that, “in unusual circumstances, an injunction may be withheld, or, more likely, limited in scope” in NEPA cases. Id., at 66a (quoting National Parks & Conservation Assn. v. Babbitt, 241 F.3d 722, 737, n. 18 (CA9 2001) (internal quotation marks omitted)); 570 F.3d, at 1137. Insofar as the statements quoted above are intended to guide the determination whether to grant injunctive relief, they invert the proper mode of analysis. An injunction should issue only if the traditional four-factor test is satis­ fied. See Winter, supra, at ___ (slip op., at 21–24). In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA viola­ tion except in unusual circumstances. No such thumb on the scales is warranted. Nor, contrary to the reasoning of the Court of Appeals, could any such error be cured by a court’s perfunctory recognition that “an injunction does 16 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court not automatically issue” in NEPA cases. See 570 F.3d, at 1137 (internal quotation marks omitted). It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunc­ tion should issue under the traditional four-factor test set out above. Notwithstanding the lower courts’ apparent reliance on the incorrect standard set out in the pre-Winter Circuit precedents quoted above, respondents argue that the lower courts in fact applied the traditional four-factor test. In their view, the statements that injunctive relief is proper in the “run-of-the-mill” NEPA case, and that such injunctions are granted except in “unusual circumstances,” are descriptive rather than prescriptive. See Brief for Respondents 28, n. 14. We need not decide whether re­ spondents’ characterization of the lower court opinions in this case is sound. Even if it is, the injunctive relief granted here cannot stand. C We first consider whether the District Court erred in enjoining APHIS from partially deregulating RRA during the pendency of the EIS process.4 The relevant part of the District Court’s judgment states that, “[b]efore granting Monsanto’s deregulation petition, —————— 4 Petitionersfocus their challenge on the part of the District Court’s order prohibiting the planting of RRA. As we explain below, however, the broad injunction against planting cannot be valid if the injunction against partial deregulation is improper. See infra, at 23; see also App. to Pet. for Cert. 64a (District Court order recognizing that APHIS’s proposed remedy “seek[s], in effect, a partial deregulation that permits the continued expansion of the Roundup Ready alfalfa market subject to certain conditions” (emphasis added)). The validity of the injunction prohibiting partial deregulation is therefore properly before us. Like the District Court, we use the term “partial deregulation” to refer to any limited or conditional deregulation. See id., at 64a, 69a. Cite as: 561 U. S. ____ (2010) 17 Opinion of the Court even in part, the federal defendants shall prepare an environmental impact statement.” App. to Pet. for Cert. 108a (emphasis added); see also id., at 79a (“The Court will enter a final judgment . . . ordering the government to prepare an EIS before it makes a decision on Monsanto’s deregulation petition”). The plain text of the order prohib­ its any partial deregulation, not just the particular partial deregulation embodied in APHIS’s proposed judgment. We think it is quite clear that the District Court meant just what it said. The related injunction against planting states that “no [RRA] . . . may be planted” “[u]ntil the federal defendants prepare the EIS and decide the deregu­ lation petition.” Id., at 108a (emphasis added). That injunction, which appears in the very same judgment and directly follows the injunction against granting Mon­ santo’s petition “even in part,” does not carve out an ex­ ception for planting subsequently authorized by a valid partial deregulation decision. In our view, none of the traditional four factors govern­ ing the entry of permanent injunctive relief supports the District Court’s injunction prohibiting partial deregula­ tion. To see why that is so, it is helpful to understand how the injunction prohibiting a partial deregulation fits into the broader dispute between the parties. Respondents in this case brought suit under the APA to challenge a particular agency order: APHIS’s decision to completely deregulate RRA. The District Court held that the order in question was procedurally defective, and APHIS decided not to appeal that determination. At that point, it was for the agency to decide whether and to what extent it would pursue a partial deregulation. If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation. If and when the 18 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court agency were to issue a partial deregulation order, any party aggrieved by that order could bring a separate suit under the Administrative Procedure Act to challenge the particular deregulation attempted. See 5 U.S. C. §702. In this case, APHIS apparently sought to “streamline” the proceedings by asking the District Court to craft a remedy that, in effect, would have partially deregulated RRA until such time as the agency had finalized the EIS needed for a complete deregulation. See Tr. of Oral Arg. 16, 23–24; App. to Pet. for Cert. 69a. To justify that dispo­ sition, APHIS and petitioners submitted voluminous documentary submissions in which they purported to show that the risk of gene flow would be insignificant if the District Court allowed limited planting and harvesting subject to APHIS’s proposed conditions. Respondents, in turn, submitted considerable evidence of their own that seemed to cut the other way. This put the District Court in an unenviable position. “The parties’ experts disagreed over virtually every factual issue relating to possible environmental harm, including the likelihood of genetic contamination and why some contamination had already occurred.” 570 F.3d, at 1135. The District Court may well have acted within its dis­ cretion in refusing to craft a judicial remedy that would have authorized the continued planting and harvesting of RRA while the EIS is being prepared. It does not follow, however, that the District Court was within its rights in enjoining APHIS from allowing such planting and harvest­ ing pursuant to the authority vested in the agency by law. When the District Court entered its permanent injunction, APHIS had not yet exercised its authority to partially deregulate RRA. Until APHIS actually seeks to effect a partial deregulation, any judicial review of such a decision is premature.5 —————— 5 NEPA provides that an EIS must be “include[d] in every recommen­ Cite as: 561 U. S. ____ (2010) 19 Opinion of the Court Nor can the District Court’s injunction be justified as a prophylactic measure needed to guard against the possi­ bility that the agency would seek to effect on its own the particular partial deregulation scheme embodied in the terms of APHIS’s proposed judgment. Even if the District Court was not required to adopt that judgment, there was no need to stop the agency from effecting a partial deregu­ lation in accordance with the procedures established by law. Moreover, the terms of the District Court’s injunction do not just enjoin the particular partial deregulation embodied in APHIS’s proposed judgment. Instead, the District Court barred the agency from pursuing any de­ regulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isolation distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distri­ bution, how robust the enforcement mechanisms available —————— dation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S. C. §4332(2)(C) (emphasis added); see also Kleppe v. Sierra Club, 427 U.S. 390, 406 (1976) (“A court has no authority to depart from the statutory language and . . . determine a point during the germination process of a potential proposal at which an impact state­ ment should be prepared” (first emphasis added)). When a particular agency proposal exists and requires the preparation of an EIS, NEPA regulations allow the agency to take at least some action pertaining to that proposal during the pendency of the EIS process. See 40 CFR §§1506.1(a), (c) (2009). We do not express any view on the Govern­ ment’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS. See Brief for Federal Respondents 21–22 (citing §1506.1(a)); Tr. of Oral Arg. 20 (“what we were proposing for the interim, that is allowing continued planting subject to various protective measures, was funda­ mentally different from the action on which the EIS was being pre­ pared”). Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time. 20 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court at the time of the decision, and—consequently—no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular. The order enjoining any partial deregulation was also inconsistent with other aspects of the very same judgment. In fashioning its remedy for the NEPA violation, the District Court steered a “middle course” between more extreme options on either end. See id., at 1136. On the one hand, the District Court rejected APHIS’s proposal (supported by petitioners) to allow continued planting and harvesting of RRA subject to the agency’s proposed limita­ tions. On the other hand, the District Court did not bar continued planting of RRA as a regulated article under permit from APHIS, see App. to Pet. for Cert. 75a, and it expressly allowed farmers to harvest and sell RRA planted before March 30, 2007, id., at 76a–79a. If the District Court was right to conclude that any partial deregulation, no matter how limited, required the preparation of an EIS, it is hard to see why the limited planting and harvesting that the District Court allowed did not also require the preparation of an EIS. Conversely, if the District Court was right to conclude that the limited planting and har­ vesting it allowed did not require the preparation of an EIS, then an appropriately limited partial deregulation should likewise have been possible. Based on the analysis set forth above, it is clear that the order enjoining any deregulation whatsoever does not satisfy the traditional four-factor test for granting perma­ nent injunctive relief. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregula­ tion, for at least two independent reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate Cite as: 561 U. S. ____ (2010) 21 Opinion of the Court preliminary relief. See 5 U.S. C. §§702, 705. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respon­ dents any injury at all, much less irreparable injury; if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexis­ tent. For example, suppose that APHIS deregulates RRA only in a remote part of the country in which respondents neither grow nor intend to grow non-genetically­ engineered alfalfa, and in which no conventional alfalfa farms are currently located. Suppose further that APHIS issues an accompanying administrative order mandating isolation distances so great as to eliminate any apprecia­ ble risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area. See, e.g., Brief in Opposition 9, n. 6 (quoting study concluding “ ‘that in order for there to be zero tolerance of any gene flow between a [RRA] seed field and a conven­ tional seed field, those fields would have to have a five­ mile isolation distance between them’ ”); see also Tr. of Oral Arg. 15–16 (representation from the Solicitor General that APHIS may impose conditions on the deregulation of RRA via issuance of an administrative order). Finally, suppose that APHIS concludes in a new EA that its lim­ ited deregulation would not pose a significant risk of gene flow or harmful weed development, and that the agency adopts a plan to police vigorously compliance with its administrative order in the limited geographic area in question. It is hard to see how respondents could show that such a limited deregulation would cause them likely irreparable injury. (Respondents in this case do not repre­ sent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties.) In any case, the District Court’s order prohibiting any 22 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court partial deregulation improperly relieves respondents of their burden to make the requisite evidentiary showing.6 Of course, APHIS might ultimately choose not to par­ tially deregulate RRA during the pendency of the EIS, or else to pursue the kind of partial deregulation embodied in its proposed judgment rather than the very limited de­ regulation envisioned in the above hypothetical. Until such time as the agency decides whether and how to exer­ cise its regulatory authority, however, the courts have no cause to intervene. Indeed, the broad injunction entered here essentially pre-empts the very procedure by which the agency could determine, independently of the pending EIS process for assessing the effects of a complete deregu­ lation, that a limited deregulation would not pose any appreciable risk of environmental harm. See 40 CFR §§1501.4, 1508.9(a) (2009). In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity —————— 6 The District Court itself appears to have recognized that its broad injunction may not have been necessary to avert any injury to respon­ dents. See App. to Pet. for Cert. 191a (“It does complicate it to try to fine-tune a particular remedy. So the simpler the remedy, the more attractive it is from the Court’s point of view, because it appears to me enforcement is easier. Understanding it is easier, and it may be, while a blunt instrument, it may actually, for the short term, achieve its result, achieve its purpose, even maybe it overachieves it. . . . Maybe a lot of it is not necessary. I don’t know” (emphasis added)); see also ibid. (“I don’t say you have to be greater than 1.6 miles, you have to be away from the bees, you have be dah dah dah. That’s the farm business. I’m not even in it”); id., at 192a (“I am not going to get into the isolation distances”). Cite as: 561 U. S. ____ (2010) 23 Opinion of the Court to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s prepa­ ration of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment. D We now turn to petitioners’ claim that the District Court erred in entering a nationwide injunction against planting RRA. Petitioners argue that the District Court did not apply the right test for determining whether to enter permanent injunctive relief; that, even if the District Court identified the operative legal standard, it erred as a matter of law in applying that standard to the facts of this case; and that the District Court was required to grant petitioners an evidentiary hearing to resolve contested issues of fact germane to the remedial dispute between the parties. We agree that the District Court’s injunction against planting went too far, but we come to that conclu­ sion for two independent reasons. First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here— farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappro­ priate for the District Court to foreclose even the possibil­ ity of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms of such a deregulation decision. Second, respondents have represented to this Court that 24 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court the District Court’s injunction against planting does not have any meaningful practical effect independent of its vacatur. See Brief for Respondents 24; see also Tr. of Oral Arg. 37 (“[T]he mistake that was made [by the District Court] was in not appreciating . . . that the vacatur did have [the] effect” of independently prohibiting the growth and sale of almost all RRA). An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. See, e.g., Weinberger v. Romero-Barcelo, 456 U.S. 305, 311–312 (1982). If a less drastic remedy (such as partial or complete vacatur of APHIS’s deregula­ tion decision) was sufficient to redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was warranted. See ibid.; see also Winter, 555 U. S., at ___ (slip op., at 21–23). E In sum, the District Court abused its discretion in en­ joining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case. Cite as: 561 U. S. ____ (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 09–475 _________________ MONSANTO COMPANY, ET AL., PETITIONERS v. GEERTSON SEED FARMS ET AL.

This case arises out of a decision by the Animal and Plant Health Inspection Service (APHIS) to deregulate a variety of genetically engineered alfalfa. The District Court held that APHIS violated the National Environ­ mental Policy Act of 1969 (NEPA), 42 U.S. C. et seq., by issuing its deregulation deci­ sion without first completing a detailed assessment of the environmental consequences of its proposed course of action. To remedy that violation, the District Court vacated the agency’s decision completely deregulating the alfalfa variety in question; ordered APHIS not to act on the deregulation petition in whole or in part until it had completed a detailed environmental review; and enjoined almost all future planting of the genetically engineered alfalfa pending the completion of that review. The Court of Appeals affirmed the District Court’s entry of permanent injunctive relief. The main issue now in dispute concerns the breadth of that relief. For the reasons set forth below, we reverse and remand for further proceedings. 2 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court I A The Plant Protection Act (PPA), 7 U.S. C. et seq., provides that the Secretary of the Depart­ ment of Agriculture (USDA) may issue regulations “to prevent the introduction of plant pests into the United States or the dissemination of plant pests within the United States.” The Secretary has delegated that authority to APHIS, a division of the USDA. 7 CFR 2.80(a)(36) (2010). Acting pursuant to that delegation, APHIS has promulgated regulations governing “the introduction of organisms and products altered or produced through genetic engineering that are plant pests or are believed to be plant pests.” See and n. 1. Under those regulations, certain genetically engi­ neered plants are presumed to be “plant pests”—and thus “regulated articles” under the PPA—until APHIS deter­ mines otherwise. See ; 340.2, 340.6; see also App. 183. However, any person may petition APHIS for a determination that a regulated article does not present a plant pest risk and therefore should not be subject to the applicable regulations. 7 U.S. C. 7 CFR APHIS may grant such a petition in whole or in part. In deciding whether to grant nonregulated status to a genetically engineered plant variety, APHIS must comply with NEPA, which requires federal agencies “to the fullest extent possible” to prepare an environmental impact statement (EIS) for “every recommendation or report on proposals for legislation and other major Federal actio[n] significantly affecting the quality of the human environ­ ment.” 42 U.S. C. The statutory text “speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.” Kleppe v. Sierra Cite as: 561 U. S. (2010) 3 Opinion of the Court Club, An agency need not complete an EIS for a particular proposal if it finds, on the basis of a shorter “environ­ mental assessment” (EA), that the proposed action will not have a significant impact on the environment. 40 CFR 1508.13 Even if a particular agency proposal requires an EIS, applicable regulations allow the agency to take at least some action in furtherance of that proposal while the EIS is being prepared. See (“no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives”); (“While work on a required program environmental impact statement is in progress and the action is not covered by an existing program statement, agencies shall not under­ take in the interim any major Federal action covered by the program which may significantly affect the quality of the human environment unless such action” satisfies certain requirements). B This case involves Roundup Ready Alfalfa (RRA), a kind of alfalfa crop that has been genetically engineered to be tolerant of glyphosate, the active ingredient of the herbi­ cide Roundup. Petitioner Monsanto Company (Monsanto) owns the intellectual property rights to RRA. Monsanto licenses those rights to co-petitioner Forage Genetics International (FGI), which is the exclusive developer of RRA seed. APHIS initially classified RRA as a regulated article, but in 2004 petitioners sought nonregulated status for two strains of RRA. In response, APHIS prepared a draft EA assessing the likely environmental impact of the requested deregulation. It then published a notice in the Federal Register advising the public of the deregulation petition and soliciting public comments on its draft EA. After 4 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court considering the hundreds of public comments that it re­ ceived, APHIS issued a Finding of No Significant Impact and decided to deregulate RRA unconditionally and with­ out preparing an EIS. Prior to this decision, APHIS had authorized almost 300 field trials of RRA conducted over a period of eight years. App. 348. Approximately eight months after APHIS granted RRA nonregulated status, respondents (two conventional alfalfa seed farms and environmental groups concerned with food safety) filed this action against the Secretary of Agricul­ ture and certain other officials in Federal District Court, challenging APHIS’s decision to completely deregulate RRA. Their complaint alleged violations of NEPA, the Endangered Species Act of 1973 (ESA), 16 U.S. C. et seq., and the PPA. Respondents did not seek preliminary injunctive relief pending resolution of those claims. Hence, RRA enjoyed nonregulated status for approximately two years. During that period, more than 3,000 farmers in 48 States planted an estimated 220,000 acres of RRA. App. 350. In resolving respondents’ NEPA claim, the District Court accepted APHIS’s determination that RRA does not have any harmful health effects on humans or livestock. App. to Pet. for Cert. 43a; accord, at 45a. Neverthe­ less, the District Court held that APHIS violated NEPA by deregulating RRA without first preparing an EIS. In particular, the court found that APHIS’s EA failed to answer substantial questions concerning two broad conse­ quences of its proposed action: first, the extent to which complete deregulation would lead to the transmission of the gene conferring glyphosate tolerance from RRA to organic and conventional alfalfa; and, second, the extent to which the introduction of RRA would contribute to the development of Roundup-resistant weeds. at 52a. In light of its determination that the deregulation decision ran afoul of NEPA, the District Court dismissed without Cite as: 561 U. S. (2010) 5 Opinion of the Court prejudice respondents’ claims under the ESA and PPA. After these rulings, the District Court granted petition­ ers permission to intervene in the remedial phase of the lawsuit. The court then asked the parties to submit pro­ posed judgments embodying their preferred means of remedying the NEPA violation. APHIS’s proposed judg­ ment would have ordered the agency to prepare an EIS, vacated the agency’s deregulation decision, and replaced that decision with the terms of the judgment itself. at 184a (proposed judgment providing that “[the federal] defendants’ [June 14,] 2005 Determination of Nonregu­ lated Status for Alfalfa Genetically Engineered for Toler­ ance to the Herbicide Glyphosate is hereby vacated and replaced by the terms of this judgment” (emphasis added)). The terms of the proposed judgment, in turn, would have permitted the continued planting of RRA pending comple­ tion of the EIS, subject to six restrictions. Those restric­ tions included, among other things, mandatory isolation distances between RRA and non-genetically-engineered alfalfa fields in order to mitigate the risk of gene flow; mandatory harvesting conditions; a requirement that planting and harvesting equipment that had been in contact with RRA be cleaned prior to any use with conven­ tional or organic alfalfa; identification and handling re­ quirements for RRA seed; and a requirement that all RRA seed producers and hay growers be under contract with either Monsanto or FGI and that their contracts require compliance with the other limitations set out in the pro­ posed judgment. The District Court rejected APHIS’s proposed judgment. In its preliminary injunction, the District Court prohibited almost all future planting of RRA pending APHIS’s com­ pletion of the required EIS. But in order to minimize the harm to farmers who had relied on APHIS’s deregulation decision, the court expressly allowed those who had al­ ready purchased RRA to plant their seeds until March 30, 6 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court 2007. at 58a. In its subsequently entered permanent injunction and judgment, the court (1) vacated APHIS’s deregulation decision; (2) ordered APHIS to prepare an EIS before it made any decision on Monsanto’s deregula­ tion petition; (3) enjoined the planting of any RRA in the United States after March 30, 2007, pending APHIS’s completion of the required EIS; and (4) imposed certain conditions (suggested by APHIS) on the handling and identification of already-planted RRA. at 79a, 109a. The District Court denied petitioners’ request for an evi­ dentiary hearing. The Government, Monsanto, and FGI appealed, chal­ lenging the scope of the relief granted but not disputing the existence of a NEPA violation. See Geertson Seed A divided panel of the Court of Appeals for the Ninth Circuit af­ firmed. Based on its review of the record, the panel first concluded that the District Court had “recognized that an injunction does not ‘automatically issue’ when a NEPA violation is found” and had instead based its issuance of injunctive relief on the four-factor test traditionally used for that purpose. The panel held that the District Court had not committed clear error in making any of the subsidiary factual findings on which its assess­ ment of the four relevant factors was based. And the panel rejected the claim that the District Court had not given sufficient deference to APHIS’s expertise concerning the likely effects of allowing continued planting of RRA on a limited basis. In the panel’s view, APHIS’s proposed interim measures would have perpetuated a system that had been found by the District Court to have caused envi­ ronmental harm in the past. Hence, the panel concluded that the District Court had not abused its discretion “in choosing to reject APHIS’s proposed mitiga­ tion measures in favor of a broader injunction to prevent more irreparable harm from occurring.” Cite as: 561 U. S. (2010) 7 Opinion of the Court The panel majority also rejected petitioners’ alternative argument that the District Court had erred in declining to hold an evidentiary hearing before entering its permanent injunction. Writing in dissent, Judge N. Randy Smith disagreed with that conclusion. In his view, the District Court was required to conduct an evidentiary hearing before issuing a permanent injunction unless the facts were undisputed or the adverse party expressly waived its right to such a hearing. Neither of those two exceptions, he found, applied here. We granted certiorari. 558 U. S. (2010). II A At the threshold, respondents contend that petitioners lack standing to seek our review of the lower court rulings at issue here. We disagree. Standing under Article III of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 557 U. S. (slip op., at 8). Petitioners here sat­ isfy all three criteria. Petitioners are injured by their inability to sell or license RRA to prospective customers until such time as APHIS completes the required EIS. Because that injury is caused by the very remedial order that petitioners challenge on appeal, it would be redressed by a favorable ruling from this Court. Respondents do not dispute that petitioners would have standing to contest the District Court’s permanent injunc­ tion order if they had pursued a different litigation strat­ egy. Instead, respondents argue that the injury of which petitioners complain is independently caused by a part of the District Court’s order that petitioners failed to chal­ lenge, namely, the vacatur of APHIS’s deregulation deci­ sion. The practical consequence of the vacatur, respon­ 8 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court dents contend, was to restore RRA to the status of a regu­ lated article; and, subject to certain exceptions not appli­ cable here, federal regulations ban the growth and sale of regulated articles. Because petitioners did not specifically challenge the District Court’s vacatur, respondents reason, they lack standing to challenge a part of the District Court’s order (i.e., the injunction) that does not cause petitioners any injury not also caused by the vacatur. See Brief for Respondents 19–20. Respondents’ argument fails for two independent rea­ sons. First, although petitioners did not challenge the vacatur directly, they adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction. Throughout the remedial phase of this litigation, one of the main disputes between the parties has been whether the District Court was required to adopt APHIS’s proposed judgment. See, e.g., Intervenor-Appellants’ Opening Brief in No. 07–16458 etc. (CA9), p. 59 (urging the Court of Appeals to “vacate the district court’s judgment and remand this case to the district court with instructions to enter APHIS’s proposed relief”); Opening Brief of Federal Defendants-Appellants in No. 16458 etc. (CA9), pp. 21, 46 (“The blanket injunc­ tion should be narrowed in accordance with APHIS’s proposal”); see also Tr. of Oral Arg. 6, 25–27, 53–54. That judgment would have replaced the vacated deregulation decision with an order expressly allowing continued plant­ ing of RRA subject to certain limited conditions. App. to Pet. for Cert. 184a (proposed judgment providing that “[the federal] defendants’ 14 June 2005 Determination of Nonregulated Status for Alfalfa Genetically Engineered for Tolerance to the Herbicide Glyphosate is hereby va­ cated and replaced by the terms of this judgment” (empha­ sis added)). Accordingly, if the District Court had adopted the agency’s suggested remedy, there would still be au­ thority for the continued planting of RRA, because there Cite as: 561 U. S. (2010) 9 Opinion of the Court would, in effect, be a new deregulation decision.1 Second, petitioners in any case have standing to chal­ lenge the part of the District Court’s order enjoining par­ tial deregulation. Respondents focus their standing ar­ gument on the part of the judgment enjoining the planting of RRA, but the judgment also states that “[b]efore grant­ ing Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an environmental impact statement.” at 108a (emphasis added); see also at 79a (“The Court will enter a final judgment ordering the government to prepare an EIS before it makes a deci­ sion on Monsanto’s deregulation petition”). As respon­ dents concede, that part of the judgment goes beyond the vacatur of APHIS’s deregulation decision. See Tr. of Oral Arg. 37, 46. At oral argument, respondents contended that the re­ triction on APHIS’s ability to effect a partial deregulation of RRA does not cause petitioners “an actual or an immi­ nent harm.” –40. In order for a partial deregula­ tion to occur, respondents argued, the case would have to be remanded to the agency, and APHIS would have to prepare an EA “that may or may not come out in favor of a partial deregulation.” Because petitioners cannot prove that those two events would happen, respon­ dents contended, the asserted harm caused by the District Court’s partial deregulation ban is too speculative to satisfy the actual or imminent injury requirement. We reject this argument. If the injunction were lifted, we do not see why the District Court would have to re­ mand the matter to the agency in order for APHIS to effect a partial deregulation. And even if a remand were —————— 1 We need not decide whether the District Court had the authority to replace the vacated agency order with an injunction of its own making. The question whether petitioners are entitled to the relief that they seek goes to the merits, not to standing. 10 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court required, we perceive no basis on which the District Court could decline to remand the matter to the agency so that it could determine whether to pursue a partial deregulation during the pendency of the EIS process. Nor is any doubt as to whether APHIS would issue a new EA in favor of a partial deregulation sufficient to defeat petitioners’ standing. It is undisputed that peti­ tioners have submitted a deregulation petition and that a partial deregulation of the kind embodied in the agency’s proposed judgment would afford petitioners much of the relief that they seek; it is also undisputed that, absent the District Court’s order, APHIS could attempt to effect such a partial deregulation pending its completion of the EIS. See at 7–8, 25–27, 38. For purposes of resolving the particular standing question before us, we need not decide whether or to what extent a party challenging an injunc­ tion that bars an agency from granting certain relief must show that the agency would be likely to afford such relief if it were free to do so. In this case, as is clear from APHIS’s proposed judgment and from its briefing throughout the remedial phase of this litigation, the agency takes the view that a partial deregulation reflect­ ing its proposed limitations is in the public interest. Thus, there is more than a strong likelihood that APHIS would partially deregulate RRA were it not for the District Court’s injunction. The District Court’s elimination of that likelihood is plainly sufficient to establish a constitu­ tionally cognizable injury. Moreover, as respondents essentially conceded at oral argument, that injury would be redressed by a favorable decision here, since “vacating the current injunction will allow [petitioners] to go back to the agency, [to] seek a partial deregulation,” even if the District Court’s vacatur of APHIS’s deregulation decision is left intact. We therefore hold that Cite as: 561 U. S. (2010) 11 Opinion of the Court petitioners have standing to seek this Court’s review.2 B We next consider petitioners’ contention that respon­ dents lack standing to seek injunctive relief. See Daim lerChrysler (“[A] plaintiff must demonstrate standing separately for each form of relief sought” (internal quotation marks omitted)). Petitioners argue that respondents have failed to show that any of the named respondents is likely to suffer a constitutionally cognizable injury absent injunctive relief. See Brief for Petitioners 40. We disagree. Respondents include conventional alfalfa farmers. Emphasizing “the undisputed concentration of alfalfa seed farms,” the District Court found that those farmers had “established a ‘reasonable probability’ that their organic and conventional alfalfa crops will be infected with the engineered gene” if RRA is completely deregulated. App. to Pet. for Cert. 50a.3 A substantial risk of gene flow —————— 2 We do not rest “the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense.” See post, at 7 (STEVENS, J., dissenting). Even if the District Court’s order prohibiting a partial deregulation applies only to “the particular partial deregulation order proposed to the court by APHIS,” see post, at 8, petitioners would still have standing to chal­ lenge that aspect of the order. 3At least one of the respondents in this case specifically alleges that he owns an alfalfa farm in a prominent seed-growing region and faces a significant risk of contamination from RRA. See Record, Doc. 62, pp. 1– 2; at 3–4 (Declaration of Phillip Geertson in Support of Plan­ tiffs’ Motion for Summary Judgment) (“Since alfalfa is pollinated by honey, bumble and leafcutter bees, the genetic contamination of the Roundup Ready seed will rapidly spread through the seed growing regions. Bees have a range of at least two to ten miles, and the alfalfa seed farms are much more concentrated”). Other declarations in the record provide further support for the District Court’s conclusion that the deregulation of RRA poses a significant risk of contamination to respondents’ crops. See, e.g., Doc. 53, ¶9, at 2 (Declaration of Jim Munsch) (alleging risk of “significant contamination due to the 12 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court injures respondents in several ways. For example, re­ spondents represent that, in order to continue marketing their product to consumers who wish to buy non­ genetically-engineered alfalfa, respondents would have to conduct testing to find out whether and to what extent their crops have been contaminated. See, e.g., Record, Doc. 62, p. 5 (Declaration of Phillip Geertson in Support of Plantiffs’ Motion for Summary Judgment) (hereinafter Geertson Declaration) (“Due to the high potential for contamination, I will need to test my crops for the pres­ ence of genetically engineered alfalfa seed. This testing will be a new cost to my seed business and we will have to raise our seed prices to cover these costs, making our prices less competitive”); Doc. 57, p. 4 (Declaration of Patrick Trask in Support of Plantiff’s Motion for Summary Judgment) (“To ensure that my seeds are pure, I will need to test my crops and obtain certification that my seeds are free of genetically engineered alfalfa”); see also Record, Doc. 55, p. 2 (“There is zero tolerance for contaminated seed in the organic market”). Respondents also allege that the risk of gene flow will cause them to take certain meas­ ures to minimize the likelihood of potential contamination and to ensure an adequate supply of non-genetically­ engineered alfalfa. See, e.g., Geertson Declaration 3 (not­ ing the “increased cost of alfalfa breeding due to potential for genetic contamination”); (“Due to the threat of contamination, I have begun contracting with growers outside of the United States to ensure that I can supply genetically pure, conventional alfalfa seed. Finding new growers has already resulted in increased administrative —————— compact geographic area of the prime alfalfa seed producing areas and the fact that pollen is distributed by bees that have large natural range of activity”); App. ¶8, p. 401 (Declaration of Marc Asumendi) (“Roundup alfalfa seed fields are currently being planted in all the major alfalfa seed production areas with little regard to contamination to non-GMO seed production fields”). Cite as: 561 U. S. (2010) 13 Opinion of the Court costs at my seed business”). Such harms, which respondents will suffer even if their crops are not actually infected with the Roundup ready gene, are sufficiently concrete to satisfy the injury-in-fact prong of the constitutional standing analysis. Those harms are readily attributable to APHIS’s deregulation decision, which, as the District Court found, gives rise to a significant risk of gene flow to non-genetically-engineered varieties of alfalfa. Finally, a judicial order prohibiting the growth and sale of all or some genetically engineered alfalfa would remedy respondents’ injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa crops. We therefore conclude that respon­ dents have constitutional standing to seek injunctive relief from the complete deregulation order at issue here. Petitioners appear to suggest that respondents fail to satisfy the “zone of interests” test we have previously articulated as a prudential standing requirement in cases challenging agency compliance with particular statutes. See Reply Brief for Petitioners 12 (arguing that protection against the risk of commercial harm “is not an interest that NEPA was enacted to address”); Bennett v. Spear, 520 U.S. 154, 162–163 (1997). That argument is unpersua­ sive because, as the District Court found, respondents’ injury has an environmental as well as an economic com­ ponent. See App. to Pet. for Cert. 49a. In its ruling on the merits of respondents’ NEPA claim, the District Court held that the risk that the RRA gene conferring gly­ phosate resistance will infect conventional and organic alfalfa is a significant environmental effect within the meaning of NEPA. Petitioners did not appeal that part of the court’s ruling, and we have no occasion to revisit it here. Respondents now seek injunctive relief in order to avert the risk of gene flow to their crops—the very same effect that the District Court determined to be a signifi­ cant environmental concern for purposes of NEPA. The 14 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court mere fact that respondents also seek to avoid certain economic harms that are tied to the risk of gene flow does not strip them of prudential standing. In short, respondents have standing to seek injunctive relief, and petitioners have standing to seek this Court’s review of the Ninth Circuit’s judgment affirming the entry of such relief. We therefore proceed to the merits of the case. III A The District Court sought to remedy APHIS’s NEPA violation in three ways: First, it vacated the agency’s decision completely deregulating RRA; second, it enjoined APHIS from deregulating RRA, in whole or in part, pend­ ing completion of the mandated EIS; and third, it entered a nationwide injunction prohibiting almost all future planting of RRA. at 108a–110a. Because petitioners and the Government do not argue otherwise, we assume without deciding that the District Court acted lawfully in vacating the deregulation decision. See Tr. of Oral Arg. 7 (“[T]he district court could have vacated the order in its entirety and sent it back to the agency”); accord, at 15– 16. We therefore address only the latter two aspects of the District Court’s judgment. Before doing so, however, we provide a brief overview of the standard governing the entry of injunctive relief. B “[A] plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suf­ fered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to com­ pensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy Cite as: 561 U. S. (2010) 15 Opinion of the Court in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay The traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. See v. Natural Resources Defense Council, Inc., 555 U. S. (2008) (slip op., at 21–23). Petitioners argue that the lower courts in this case proceeded on the erroneous assumption that an injunction is generally the appropriate remedy for a NEPA violation. In particular, petitioners note that the District Court cited pre- Ninth Circuit precedent for the proposition that, in “ ‘the run of the mill NEPA case,’ ” an injunction delaying the contemplated government project is proper “ ‘until the NEPA violation is cured.’ ” App. to Pet. for Cert. 65a (quoting Idaho Watersheds Project v. Hahn, 307 F.3d 815, 833 (CA9 2002)); see also App. to Pet. for Cert. 55a (quoting same language in preliminary injunction order). In addition, petitioners observe, the District Court and the Court of Appeals in this case both stated that, “in unusual circumstances, an injunction may be withheld, or, more likely, limited in scope” in NEPA cases. 6a (internal quotation marks omitted)); 570 F.3d, Insofar as the statements quoted above are intended to guide the determination whether to grant injunctive relief, they invert the proper mode of analysis. An injunction should issue only if the traditional four-factor test is satis­ fied. See at (slip op., at 21–24). In contrast, the statements quoted above appear to presume that an injunction is the proper remedy for a NEPA viola­ tion except in unusual circumstances. No such thumb on the scales is warranted. Nor, contrary to the reasoning of the Court of Appeals, could any such error be cured by a court’s perfunctory recognition that “an injunction does 16 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court not automatically issue” in NEPA cases. See 570 F.3d, at 1137 (internal quotation marks omitted). It is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunc­ tion should issue under the traditional four-factor test set out above. Notwithstanding the lower courts’ apparent reliance on the incorrect standard set out in the pre- Circuit precedents quoted above, respondents argue that the lower courts in fact applied the traditional four-factor test. In their view, the statements that injunctive relief is proper in the “run-of-the-mill” NEPA case, and that such injunctions are granted except in “unusual circumstances,” are descriptive rather than prescriptive. See Brief for Respondents 28, n. 14. We need not decide whether re­ spondents’ characterization of the lower court opinions in this case is sound. Even if it is, the injunctive relief granted here cannot stand. C We first consider whether the District Court erred in enjoining APHIS from partially deregulating RRA during the pendency of the EIS process.4 The relevant part of the District Court’s judgment states that, “[b]efore granting Monsanto’s deregulation petition, —————— 4 Petitionersfocus their challenge on the part of the District Court’s order prohibiting the planting of RRA. As we explain below, however, the broad injunction against planting cannot be valid if the injunction against partial deregulation is improper. See infra, at 23; see also App. to Pet. for Cert. 64a (District Court order recognizing that APHIS’s proposed remedy “seek[s], in effect, a partial deregulation that permits the continued expansion of the Roundup Ready alfalfa market subject to certain conditions” (emphasis added)). The validity of the injunction prohibiting partial deregulation is therefore properly before us. Like the District Court, we use the term “partial deregulation” to refer to any limited or conditional deregulation. See 4a, 69a. Cite as: 561 U. S. (2010) 17 Opinion of the Court even in part, the federal defendants shall prepare an environmental impact statement.” App. to Pet. for Cert. 108a (emphasis added); see also at 79a (“The Court will enter a final judgment ordering the government to prepare an EIS before it makes a decision on Monsanto’s deregulation petition”). The plain text of the order prohib­ its any partial deregulation, not just the particular partial deregulation embodied in APHIS’s proposed judgment. We think it is quite clear that the District Court meant just what it said. The related injunction against planting states that “no [RRA] may be planted” “[u]ntil the federal defendants prepare the EIS and decide the deregu­ lation petition.” at 108a (emphasis added). That injunction, which appears in the very same judgment and directly follows the injunction against granting Mon­ santo’s petition “even in part,” does not carve out an ex­ ception for planting subsequently authorized by a valid partial deregulation decision. In our view, none of the traditional four factors govern­ ing the entry of permanent injunctive relief supports the District Court’s injunction prohibiting partial deregula­ tion. To see why that is so, it is helpful to understand how the injunction prohibiting a partial deregulation fits into the broader dispute between the parties. Respondents in this case brought suit under the APA to challenge a particular agency order: APHIS’s decision to completely deregulate RRA. The District Court held that the order in question was procedurally defective, and APHIS decided not to appeal that determination. At that point, it was for the agency to decide whether and to what extent it would pursue a partial deregulation. If the agency found, on the basis of a new EA, that a limited and temporary deregulation satisfied applicable statutory and regulatory requirements, it could proceed with such a deregulation even if it had not yet finished the onerous EIS required for complete deregulation. If and when the 18 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court agency were to issue a partial deregulation order, any party aggrieved by that order could bring a separate suit under the Administrative Procedure Act to challenge the particular deregulation attempted. See 5 U.S. C. In this case, APHIS apparently sought to “streamline” the proceedings by asking the District Court to craft a remedy that, in effect, would have partially deregulated RRA until such time as the agency had finalized the EIS needed for a complete deregulation. See Tr. of Oral Arg. 16, 23–24; App. to Pet. for Cert. 69a. To justify that dispo­ sition, APHIS and petitioners submitted voluminous documentary submissions in which they purported to show that the risk of gene flow would be insignificant if the District Court allowed limited planting and harvesting subject to APHIS’s proposed conditions. Respondents, in turn, submitted considerable evidence of their own that seemed to cut the other way. This put the District Court in an unenviable position. “The parties’ experts disagreed over virtually every factual issue relating to possible environmental harm, including the likelihood of genetic contamination and why some contamination had already occurred.” The District Court may well have acted within its dis­ cretion in refusing to craft a judicial remedy that would have authorized the continued planting and harvesting of RRA while the EIS is being prepared. It does not follow, however, that the District Court was within its rights in enjoining APHIS from allowing such planting and harvest­ ing pursuant to the authority vested in the agency by law. When the District Court entered its permanent injunction, APHIS had not yet exercised its authority to partially deregulate RRA. Until APHIS actually seeks to effect a partial deregulation, any judicial review of such a decision is premature.5 —————— 5 NEPA provides that an EIS must be “include[d] in every recommen­ Cite as: 561 U. S. (2010) 19 Opinion of the Court Nor can the District Court’s injunction be justified as a prophylactic measure needed to guard against the possi­ bility that the agency would seek to effect on its own the particular partial deregulation scheme embodied in the terms of APHIS’s proposed judgment. Even if the District Court was not required to adopt that judgment, there was no need to stop the agency from effecting a partial deregu­ lation in accordance with the procedures established by law. Moreover, the terms of the District Court’s injunction do not just enjoin the particular partial deregulation embodied in APHIS’s proposed judgment. Instead, the District Court barred the agency from pursuing any de­ regulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isolation distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distri­ bution, how robust the enforcement mechanisms available —————— dation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” 42 U.S. C. (emphasis added); see also (“A court has no authority to depart from the statutory language and determine a point during the germination process of a potential proposal at which an impact state­ ment should be prepared” (first emphasis added)). When a particular agency proposal exists and requires the preparation of an EIS, NEPA regulations allow the agency to take at least some action pertaining to that proposal during the pendency of the EIS process. See 40 CFR §, (c) We do not express any view on the Govern­ ment’s contention that a limited deregulation of the kind embodied in its proposed judgment would not require the prior preparation of an EIS. See Brief for Federal Respondents 21–22 (citing ); Tr. of Oral Arg. 20 (“what we were proposing for the interim, that is allowing continued planting subject to various protective measures, was funda­ mentally different from the action on which the EIS was being pre­ pared”). Because APHIS has not yet invoked the procedures necessary to attempt a limited deregulation, any judicial consideration of such issues is not warranted at this time. 20 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court at the time of the decision, and—consequently—no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular. The order enjoining any partial deregulation was also inconsistent with other aspects of the very same judgment. In fashioning its remedy for the NEPA violation, the District Court steered a “middle course” between more extreme options on either end. See at On the one hand, the District Court rejected APHIS’s proposal (supported by petitioners) to allow continued planting and harvesting of RRA subject to the agency’s proposed limita­ tions. On the other hand, the District Court did not bar continued planting of RRA as a regulated article under permit from APHIS, see App. to Pet. for Cert. 75a, and it expressly allowed farmers to harvest and sell RRA planted before March 30, 2007, at 76a–79a. If the District Court was right to conclude that any partial deregulation, no matter how limited, required the preparation of an EIS, it is hard to see why the limited planting and harvesting that the District Court allowed did not also require the preparation of an EIS. Conversely, if the District Court was right to conclude that the limited planting and har­ vesting it allowed did not require the preparation of an EIS, then an appropriately limited partial deregulation should likewise have been possible. Based on the analysis set forth above, it is clear that the order enjoining any deregulation whatsoever does not satisfy the traditional four-factor test for granting perma­ nent injunctive relief. Most importantly, respondents cannot show that they will suffer irreparable injury if APHIS is allowed to proceed with any partial deregula­ tion, for at least two independent reasons. First, if and when APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new suit challenging such action and seeking appropriate Cite as: 561 U. S. (2010) 21 Opinion of the Court preliminary relief. See 5 U.S. C. 705. Accordingly, a permanent injunction is not now needed to guard against any present or imminent risk of likely irreparable harm. Second, a partial deregulation need not cause respon­ dents any injury at all, much less irreparable injury; if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexis­ tent. For example, suppose that APHIS deregulates RRA only in a remote part of the country in which respondents neither grow nor intend to grow non-genetically­ engineered alfalfa, and in which no conventional alfalfa farms are currently located. Suppose further that APHIS issues an accompanying administrative order mandating isolation distances so great as to eliminate any apprecia­ ble risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area. See, e.g., Brief in Opposition 9, n. 6 (quoting study concluding “ ‘that in order for there to be zero tolerance of any gene flow between a [RRA] seed field and a conven­ tional seed field, those fields would have to have a five­ mile isolation distance between them’ ”); see also Tr. of Oral Arg. 15–16 (representation from the Solicitor General that APHIS may impose conditions on the deregulation of RRA via issuance of an administrative order). Finally, suppose that APHIS concludes in a new EA that its lim­ ited deregulation would not pose a significant risk of gene flow or harmful weed development, and that the agency adopts a plan to police vigorously compliance with its administrative order in the limited geographic area in question. It is hard to see how respondents could show that such a limited deregulation would cause them likely irreparable injury. (Respondents in this case do not repre­ sent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties.) In any case, the District Court’s order prohibiting any 22 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court partial deregulation improperly relieves respondents of their burden to make the requisite evidentiary showing.6 Of course, APHIS might ultimately choose not to par­ tially deregulate RRA during the pendency of the EIS, or else to pursue the kind of partial deregulation embodied in its proposed judgment rather than the very limited de­ regulation envisioned in the above hypothetical. Until such time as the agency decides whether and how to exer­ cise its regulatory authority, however, the courts have no cause to intervene. Indeed, the broad injunction entered here essentially pre-empts the very procedure by which the agency could determine, independently of the pending EIS process for assessing the effects of a complete deregu­ lation, that a limited deregulation would not pose any appreciable risk of environmental harm. See 40 CFR 1508.9(a) In sum, we do not know whether and to what extent APHIS would seek to effect a limited deregulation during the pendency of the EIS process if it were free to do so; we do know that the vacatur of APHIS’s deregulation decision means that virtually no RRA can be grown or sold until such time as a new deregulation decision is in place, and we also know that any party aggrieved by a hypothetical future deregulation decision will have ample opportunity —————— 6 The District Court itself appears to have recognized that its broad injunction may not have been necessary to avert any injury to respon­ dents. See App. to Pet. for Cert. 191a (“It does complicate it to try to fine-tune a particular remedy. So the simpler the remedy, the more attractive it is from the Court’s point of view, because it appears to me enforcement is easier. Understanding it is easier, and it may be, while a blunt instrument, it may actually, for the short term, achieve its result, achieve its purpose, even maybe it overachieves it. Maybe a lot of it is not necessary. I don’t know” (emphasis added)); see also (“I don’t say you have to be greater than 1.6 miles, you have to be away from the bees, you have be dah dah dah. That’s the farm business. I’m not even in it”); at 192a (“I am not going to get into the isolation distances”). Cite as: 561 U. S. (2010) 23 Opinion of the Court to challenge it, and to seek appropriate preliminary relief, if and when such a decision is made. In light of these particular circumstances, we hold that the District Court did not properly exercise its discretion in enjoining a partial deregulation of any kind pending APHIS’s prepa­ ration of an EIS. It follows that the Court of Appeals erred in affirming that aspect of the District Court’s judgment. D We now turn to petitioners’ claim that the District Court erred in entering a nationwide injunction against planting RRA. Petitioners argue that the District Court did not apply the right test for determining whether to enter permanent injunctive relief; that, even if the District Court identified the operative legal standard, it erred as a matter of law in applying that standard to the facts of this case; and that the District Court was required to grant petitioners an evidentiary hearing to resolve contested issues of fact germane to the remedial dispute between the parties. We agree that the District Court’s injunction against planting went too far, but we come to that conclu­ sion for two independent reasons. First, the impropriety of the District Court’s broad injunction against planting flows from the impropriety of its injunction against partial deregulation. If APHIS may partially deregulate RRA before preparing a full-blown EIS—a question that we need not and do not decide here— farmers should be able to grow and sell RRA in accordance with that agency determination. Because it was inappro­ priate for the District Court to foreclose even the possibil­ ity of a partial and temporary deregulation, it necessarily follows that it was likewise inappropriate to enjoin any and all parties from acting in accordance with the terms of such a deregulation decision. Second, respondents have represented to this Court that 24 MONSANTO CO. v. GEERTSON SEED FARMS Opinion of the Court the District Court’s injunction against planting does not have any meaningful practical effect independent of its vacatur. See Brief for Respondents 24; see also Tr. of Oral Arg. 37 (“[T]he mistake that was made [by the District Court] was in not appreciating that the vacatur did have [the] effect” of independently prohibiting the growth and sale of almost all RRA). An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. See, e.g., If a less drastic remedy (such as partial or complete vacatur of APHIS’s deregula­ tion decision) was sufficient to redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was warranted. See ; see also 555 U. S., at (slip op., at 21–23). E In sum, the District Court abused its discretion in en­ joining APHIS from effecting a partial deregulation and in prohibiting the possibility of planting in accordance with the terms of such a deregulation. Given those errors, this Court need not express any view on whether injunctive relief of some kind was available to respondents on the record before us. Nor does the Court address the question whether the District Court was required to conduct an evidentiary hearing before entering the relief at issue here. The judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE BREYER took no part in the consideration or decision of this case. Cite as: 561 U. S. (2010) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–475 MONSANTO COMPANY, ET AL., PETITIONERS v. GEERTSON SEED FARMS ET AL.

Justice Stevens

dissenting

Monsanto Co. v. Geertson Seed Farms

2010-06-21

https://www.courtlistener.com/opinion/149005/monsanto-co-v-geertson-seed-farms/

https://www.courtlistener.com/api/rest/v3/clusters/149005/

2009-080

The Court does not dispute the District Court’s critical findings of fact: First, Roundup Ready Alfalfa (RRA) can contaminate other plants. See App. to Pet. for Cert. 38a, 54a, 62a. Second, even planting in a controlled setting had led to contamination in some instances. See id., at 69a–70a. Third, the Animal and Plant Health Inspection Service (APHIS) has limited ability to monitor or enforce limitations on planting. See id., at 70a. And fourth, genetic contamination from RRA could decimate farmers’ livelihoods and the American alfalfa market for years to come. See id., at 71a; see also id., at 29a–30a. Instead, the majority faults the District Court for “enjoining APHIS from partially deregulating RRA.” Ante, at 16. In my view, the District Court may not have actually ordered such relief, and we should not so readily assume that it did. Regardless, the District Court did not abuse its discretion when, after considering the voluminous record and making the aforementioned findings, it issued the order now before us. I To understand the District Court’s judgment, it is nec essary to understand the background of this litigation. Petitioner Monsanto Company (Monsanto) is a large cor 2 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting poration that has long produced a weed killer called Roundup. After years of experimentation, Monsanto and co-petitioner Forage Genetics International (FGI) geneti cally engineered a mutation in the alfalfa genome that makes the plant immune to Roundup. Monsanto and FGI’s new product, RRA, is “the first crop that has been engineered to resist a[n] herbicide” and that can transmit the genetically engineered gene to other plants. See App. to Pet. for Cert. 45a. In 2004, in the midst of a deregulatory trend in the agricultural sector, petitioners asked APHIS to deregulate RRA, thereby allowing it to be sold and planted nation wide. App. 101a. Rather than conducting a detailed analysis and preparing an “environmental impact state ment” (EIS), as required by the National Environmental Policy Act of 1969 (NEPA) for every “major Federal ac tio[n] significantly affecting the quality of the human environment,” 42 U.S. C. §4332(2)(C), APHIS merely conducted an abbreviated “environmental assessment” (EA). During the 6-month period in which APHIS allowed public comment on its EA, the agency received 663 com ments, 520 of which opposed deregulation. App. to Pet. for Cert. 29a. Farmers and scientists opined that RRA could contaminate alfalfa that has not been genetically modified, destroying the American export market for alfalfa and, potentially, contaminating other plants and breeding a new type of pesticide-resistant weed. Id., at 29a–30a. Despite substantial evidence that RRA genes could transfer to other plants, APHIS issued a Finding of No Significant Impact and agreed to deregulate RRA “uncon ditionally,” ante, at 4. With no EIS to wait for and no regulation blocking its path, petitioners began selling RRA. Farmers and environmental groups swiftly brought this lawsuit to challenge APHIS’s decision to deregulate, raising claims under NEPA and other statutes. The District Court carefully reviewed a long record and Cite as: 561 U. S. ____ (2010) 3 STEVENS, J., dissenting found that “APHIS’s reasons for concluding” that the risks of genetic contamination are low were “not ‘convincing.’ ” App. to Pet. for Cert. 38a. A review of APHIS’s internal documents showed that individuals within the agency warned that contamination might occur. APHIS rested its decision to deregulate on its assertion that contamination risk is “not significant because it is the organic and con ventional farmers’ responsibility” to protect themselves and the environment. Ibid. Yet the agency drew this conclusion without having investigated whether such farmers “can, in fact, protect their crops from contamina tion.” Ibid. The District Court likewise found that APHIS’s reasons for disregarding the risk of pesticide resistant weeds were speculative and “not convincing.” Id., at 46a. The agency had merely explained that if weeds acquire roundup resistance, farmers can use “ ‘[a]l ternative herbicides.’ ” Ibid. In light of the “acknowl edged” risk of RRA gene transmission and the potential “impact on the development of Roundup resistant weeds,” the court concluded that there was a significant possibility of serious environmental harm, and granted summary judgment for the plaintiffs. Id., at 54a; see also id., at 45a. At this point, the question of remedy arose. The parties submitted proposed final judgments, and several corpora tions with an interest in RRA, including Monsanto, sought permission to intervene. The District Court granted their motion and agreed “to give them the opportunity to pre sent evidence to assist the court in fashioning the appro priate scope of whatever relief is granted.” Id., at 54a (internal quotation marks omitted). While the District Court considered the proposed judg ments, it issued a preliminary injunction. Ordinarily, the court explained, the remedy for failure to conduct an EIS is to vacate the permit that was unlawfully given—the result of which, in this case, would be to prohibit any use of RRA. See id., at 55a; see also id., at 65a. But this case 4 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting presented a special difficulty: Following APHIS’s unlawful deregulation order, some farmers had begun planting genetically modified RRA. Id., at 55a. In its preliminary injunction, the District Court ordered that no new RRA could be planted until APHIS completed the EIS or the court determined that some other relief was appropriate. But, so as to protect these farmers, the court declined to prohibit them from “harvesting, using, or selling” any crops they had already planted. Id., at 56a. And “to minimize the harm to those growers who intend to immi nently plant Roundup Ready alfalfa,” the court permitted “[t]hose growers who intend to plant [RRA] in the next three weeks and have already purchased the seed” to go ahead and plant. Id., at 58a (emphasis deleted). Essen tially, the court grandfathered in those farmers who had relied, in good faith, on APHIS’s actions. Before determining the scope of its final judgment, the District Court invited the parties and intervenors to sub mit “whatever additional evidence” they “wish[ed] to provide,” and it scheduled additional oral argument. Id., at 58a–59a. The parties submitted “competing proposals for permanent injunctive relief.” Id., at 60a. The plain tiffs requested that no one—not even the grandfathered-in farmers—be allowed to plant, grow, or harvest RRA until the full EIS had been prepared. Id., at 64a. APHIS and the intervenors instead sought a remedy that would “fa cilitat[e] the continued and dramatic growth” of RRA: a “partial deregulation” order that would permit planting subject to certain conditions, such as specified minimum distances between RRA and conventional alfalfa and special cleaning requirements for equipment used on the genetically modified crop. See id., at 60a–64a. The court adopted a compromise. First, it declined to adopt the APHIS-Monsanto proposal. APHIS itself had acknowledged that “gene transmission could and had occurred,” and that RRA “could result in the development Cite as: 561 U. S. ____ (2010) 5 STEVENS, J., dissenting of Roundup-resistant weeds.” Id., at 61a–62a. In light of the substantial record evidence of these risks, the court would not agree to a nationwide planting scheme “without the benefit of the development of all the relevant data,” as well as public comment about whether contamination could be controlled. Id., at 68a. The “partial deregulation” proposed by petitioners, the court noted, was really “de regulation with certain conditions,” id., at 69a—which, for the same reasons given in the court’s earlier order, re quires an EIS, ibid. The court pointed out numerous problems with the APHIS-Monsanto proposal. Neither APHIS nor Monsanto had provided “evidence that sug gests whether, and to what extent, the proposed interim conditions” would actually “be followed,” and comparable conditions had failed to prevent contamination in certain limited settings. Id., at 69a–70a. APHIS, moreover, conceded that “it does not have the resources to inspect” the RRA that had already been planted, and so could not possibly be expected “to adequately monitor the more than one million acres of [RRA] intervenors estimate [would] be planted” under their proposal. Ibid. That was especially problematic because any plan to limit contamination depended on rules about harvesting, and farmers were unlikely to follow those rules. Id., at 71a. “APHIS ha[d] still not made any inquiry” into numerous factual concerns raised by the court in its summary judgment order issued several months earlier. Id., at 70a. Next, the court rejected the plaintiffs’ proposed remedy of “enjoin[ing] the harvesting and sale of already planted” RRA. Id., at 76a. Although any planting or harvesting of RRA poses a contamination risk, the court reasoned that the equities were different for those farmers who had already invested time and money planting RRA in good faith reliance on APHIS’s deregulation order. And small amounts of harvesting could be more easily monitored. Rather than force the farmers to tear up their crops, the 6 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting court imposed a variety of conditions on the crops’ han dling and distribution. Id., at 77a. As to all other RRA, however, the court sided with the plaintiffs and enjoined planting during the pendency of the EIS. Balancing the equities, the court explained that the risk of harm was great. “[C]ontamination cannot be undone; it will destroy the crops of those farmers who do not sell genetically modified alfalfa.” Id., at 71a. And because those crops “cannot be replanted for two to four years,” that loss will be even greater. Ibid. On the other side of the balance, the court recognized that some farmers may wish to switch to genetically modified alfalfa immedi ately, and some companies like Monsanto want to start selling it to them just as fast. But, the court noted, RRA is a small percentage of those companies’ overall business; unsold seed can be stored; and the companies “ ‘have [no] cause to claim surprise’ ” as to any loss of anticipated revenue, as they “were aware of plaintiffs’ lawsuit” and “nonetheless chose to market” RRA. Id., at 72a. Thus, the District Court stated that it would “vacat[e] the June 2005 deregulation decision”; “enjoi[n] the plant ing of [RRA] in the United States after March 30, 2007,” the date of the decision, “pending the government’s com pletion of the EIS and decision on the deregulation peti tion”; and impose “conditions on the handling and identifi cation of already-planted [RRA].” Id., at 79a. On the same day, the court issued its judgment. In relevant part, the judgment states: “The federal defendants’ June 14, 2005 Determination of Nonregulated Status for [RRA] is VACATED. Be fore granting Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an [EIS]. Until the federal defendants prepare the EIS and de cide the deregulation petition, no [RRA] may be planted. . . . [RRA already] planted before March 30, Cite as: 561 U. S. ____ (2010) 7 STEVENS, J., dissenting 2007 may be grown, harvested and sold subject to the following conditions.” Id., at 108a–109a. II Before proceeding to address the Court’s opinion on its own terms, it is important to note that I have reservations about the validity of those terms. The Court today rests not only the bulk of its analysis but also the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense. See ante, at 9–11, 16–23.1 That is a permissible, but not necessarily correct, reading of the District Court’s judgment. So far as I can tell, until petitioners’ reply brief, neither petitioners nor the Government submitted to us that the District Court had exceeded its authority in this manner. And, indeed, the Government had not raised this issue in any court at all. Petitioners did not raise the issue in any of their three questions presented or in the body of their petition for a writ or certiorari. And they did not raise the issue in their opening briefs to this Court. Only after respondents alleged that Monsanto’s injury would not be redressed by vacating the injunction, insofar as RRA would still be a regulated article, did petitioners bring the issue to the Court’s attention. Explaining why they have a redressable injury, petitioners alleged that the District Court’s order prevents APHIS from “implement[ing] an[y] —————— 1 See also ante, at 19–20 (“[T]he District Court barred the agency from pursuing any deregulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isola tion distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distribution, how robust the enforcement mechanisms available at the time of the decision, and—consequently— no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular” (emphasis deleted)). 8 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting interim solution allowing continued planting.” Reply Brief for Petitioners 5. APHIS, the party that the Court says was wrongly “barred . . . from pursuing any deregulation,” even “in accordance with the procedures established by law,” ante, at 19, did not complain about this aspect of the District Court’s order even in its reply brief. Thus, notwithstanding that petitioners “adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction,” ante, at 8 (emphasis added), the key legal premise on which the Court decides this case was never adequately presented. Of course, this is not standard—or sound—judicial practice. See Kumho Tire Co. v. Carmi chael, 526 U.S. 137, 159 (1999) (STEVENS, J., concurring in part and dissenting in part). Today’s decision illus trates why, for it is quite unclear whether the Court’s premise is correct, and the Court has put itself in the position of deciding legal issues without the aid of briefing. In my view, the District Court’s judgment can fairly be read to address only (1) total deregulation orders of the kind that spawned this lawsuit, and (2) the particular partial deregulation order proposed to the court by APHIS. This interpretation of the judgment is more consistent with the District Court’s accompanying opinion, which concluded by stating that the court “will enter a final judgment” “ordering the government to prepare an EIS before [the court] makes a decision on Monsanto’s deregu lation petition.” App. to Pet. for Cert. 79a. The language of that opinion does not appear to “ba[r] the agency from pursuing any deregulation—no matter how limited,” ante, at 19 (emphasis deleted). This interpretation is also more consistent with APHIS’s own decision not to contest what, according to the Court, was an unprecedented infringe ment on the agency’s statutory authority. To be sure, the District Court’s judgment is somewhat opaque. But it is troubling that we may be asserting Cite as: 561 U. S. ____ (2010) 9 STEVENS, J., dissenting jurisdiction and deciding a highly factbound case based on nothing more than a misunderstanding. It is also trou bling that we may be making law without adequate brief ing on the critical questions we are passing upon. I would not be surprised if on remand the District Court merely clarified its order. III Even assuming that the majority has correctly inter preted the District Court’s judgment, I do not agree that we should reverse the District Court. At the outset, it is important to observe that when a district court is faced with an unlawful agency action, a set of parties who have relied on that action, and a prayer for relief to avoid irreparable harm, the court is operating under its powers of equity. In such a case, a court’s func tion is “to do equity and to mould each decree to the neces sities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). “Flexibility” and “practicality” are the touchtones of these remedial determinations, as “the public interest,” “private needs,” and “competing private claims” must all be weighed and reconciled against the background of the court’s own limitations and its particu lar familiarity with the case. Id., at 329–330.2 When a district court takes on the equitable role of adjusting legal obligations, we review the remedy it crafts —————— 2 See also, e.g., Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (“The history of equity jurisdiction is the history of regard for public consequences. . . . There have been as many and as variegated applications of this supple principle as the situations that have brought it into play”); Seymour v. Freer, 8 Wall. 202, 218 (1869) (“[A] court of equity ha[s] unquestionable authority to apply its flexible and comprehensive jurisdiction in such manner as might be necessary to the right administration of justice between the parties”). Indeed, the very “ground of this jurisdiction” is a court’s “ability to give a more complete and perfect remedy.” 2 J. Story, Equity Jurisprudence §924, p. 225 (M. Bigelow ed. 13th ed. 1886). 10 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting for abuse of discretion. “[D]eference,” we have explained, “is the hallmark of abuse-of-discretion review.” General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997). Although equitable remedies are “not left to a trial court’s ‘inclina tion,’ ” they are left to the court’s “ ‘judgment.’ ” Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975) (quoting United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.)). The principles set forth in applicable federal statutes may inform that judgment. See United States v. Oakland Cannabis Buyers’ Coopera tive, 532 U.S. 483, 497 (2001) (“[A] court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in legislation” (internal quotation marks omit ted)). And historically, courts have had particularly broad equitable power—and thus particularly broad discretion— to remedy public nuisances and other “ ‘purprestures upon public rights and properties,’ ” Mugler v. Kansas, 123 U.S. 623, 672 (1887),3 which include environmental harms.4 In my view, the District Court did not “unreasonably exercis[e]” its discretion, Bennett v. Bennett, 208 U.S. 505, 512 (1908), even if it did categorically prohibit partial deregulation pending completion of the EIS. Rather, the District Court’s judgment can be understood as either of two reasonable exercises of its equitable powers. Equitable Application of Administrative Law First, the District Court’s decision can be understood as an equitable application of administrative law. Faced with two different deregulation proposals, the District Court appears to have vacated the deregulation that had already occurred, made clear that NEPA requires an EIS —————— 3 See Steelworkers v. United States, 361 U.S. 39, 60–61 (1959) (per curiam) (reviewing history of injunctions to prevent public nuisances). 4 See, e.g., Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) (air pollution); Arizona Copper Co. v. Gillespie, 230 U.S. 46, 56–57 (1913) (water pollution). Cite as: 561 U. S. ____ (2010) 11 STEVENS, J., dissenting for any future deregulation of RRA, and partially stayed the vacatur to the extent it affects farmers who had al ready planted RRA.5 Under NEPA, an agency must prepare an EIS for “every . . . major Federal actio[n] significantly affecting the qual ity of the human environment.” 42 U.S. C. §4332(2)(C). Recall that the District Court had found, on the basis of substantial evidence, that planting RRA can cause genetic contamination of other crops, planting in controlled set tings had led to contamination, APHIS is unable to moni tor or enforce limitations on planting, and genetic con tamination could decimate the American alfalfa market. In light of that evidence, the court may well have con cluded that any deregulation of RRA, even in a “limited . . . geographic area” with “stringent . . . regulations gov erning harvesting and distribution,”6 ante, at 19–20, re —————— 5 See Reply Brief for Federal Respondents 3. There is an ongoing debate about the role of equitable adjustments in administrative law. See, e.g., Levin, Vacation at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L. J. 291 (2003). The parties to this appeal and the majority assume that the District Court’s remedy was crafted under its equity powers, and I will do the same. 6 One of the many matters not briefed in this case is how limited a partial deregulation can be. It is not clear whether the sort of ex tremely limited “partial deregulations” envisioned by the Court, see ante, at 19–23, in which RRA is “deregulated” in one small geographic area pursuant to stringent restrictions, could be achieved only through “partial deregulation” actions, or whether they could also (or exclu sively) be achieved through a more case-specific permit process. Under the applicable regulations, a regulated article may still be used subject to a permitting process. See 7 CFR §§340.0, 340.4 (2010). These permits “prescribe confinement conditions and standard operating procedures . . . to maintain confinement of the genetically engineered organism.” Introduction of Organisms and Products Altered or Pro duced Through Genetic Engineering, 72 Fed. Reg. 39021, 39022 (2007) (hereinafter Introduction). Ordinarily, “[o]nce an article has been deregulated, APHIS does not place any restrictions or requirements on its use.” Id., at 39023. As of 2007, APHIS had never—not once—granted partial approval of a 12 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting quires an EIS under NEPA. See generally D. Mandelker, NEPA Law and Litigation §§8:33–8:48 (2d ed. 2009) (de scribing when an EIS is required); cf. Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989) (NEPA embodies “sweeping commitment” to environ mental safety and principle that “the agency will not act on incomplete information, only to regret its decision after it is too late to correct”). Indeed, it appears that any de regulation of a genetically modified, herbicide-resistant crop that can transfer its genes to other organisms and cannot effectively be monitored easily fits the criteria for when an EIS is required.7 That is especially so when, as in this case, the environmental threat is novel. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. ___, ___ (2008) (slip op., at 13) (EIS is more important when party “is conducting a new type of activity with completely unknown effects on the environment”).8 —————— petition for nonregulated status. USDA, Introduction of Genetically Engineered Organisms, Draft Environmental Impact Statement, July 2007, p. 11, online at http://www.aphis.usda.gov/brs/pdf/complete_ eis.pdf (as visited June 18, 2010, and available in Clerk of Court’s case file). In 2007, APHIS began contemplating a “new system” to allow for the release and use of genetically modified organisms, for “special cases” in which there are risks “that could be mitigated with conditions to ensure safe commercial use.” Introduction 39024 (em phasis added). 7 See, e.g., 40 CFR §1508.8 (2009) (determination whether an EIS is required turns on both “[d]irect effects” and “[i]ndirect effects,” and “include[s] those resulting from actions which may have both beneficial and detrimental effects even if on balance the agency believes that the effect will be beneficial”); §1508.27(b)(4) (determination whether an EIS is required turns on “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial”); §1508.27(b)(5) (determination whether an EIS is required turns on “[t]he degree to which the possible effects on the quality of the human environment are highly uncertain or involve unique or unknown risks”). 8 The Court posits a hypothetical in which APHIS deregulates RRA limited to a remote area in which alfalfa is not grown, and issues an Cite as: 561 U. S. ____ (2010) 13 STEVENS, J., dissenting Moreover, given that APHIS had already been ordered to conduct an EIS on deregulation of RRA, the court could have reasonably feared that partial deregulation would undermine the agency’s eventual decision. Courts con fronted with NEPA violations regularly adopt interim measures to maintain the status quo, particularly if allow ing agency action to go forward risks foreclosing alterna tive courses of action that the agency might have adopted following completion of an EIS. See D. Mandelker, NEPA Law and Litigation §4:61. The applicable regulations, to which the District Court owed deference,9 provide that during the preparation of an EIS, “no action concerning the [agency’s] proposal shall be taken which would . . . [h]ave an adverse environmental impact” or “[l]imit the choice of reasonable alternatives.” 40 CFR §1506.1(a) (2009). As exemplified by the problem of what to do with farmers who had already purchased or planted RRA prior to the District Court’s judgment, even minimal deregula tion can limit future regulatory options. “Courts must remember that in many cases allowing an agency to pro ceed makes a mockery of the EIS process, converting it —————— accompanying order “mandating isolation distances so great as to eliminate any appreciable risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area.” Ante, at 21. At the outset, it is important to note the difference be tween a plausible hypothetical and a piece of fiction. At least as of 2007, APHIS had never granted partial approval of a petition for nonregulated status. See n. 6, supra. And I doubt that it would choose to deregulate genetically modified alfalfa in a place where the growing conditions and sales networks for the product are so poor that no farmer already plants it. Moreover, the notion that this imagined deregulation would pose virtually no environmental risk ignores one of the District Court’s critical findings of fact: APHIS has very limited capacity to monitor its own restrictions. The agency could place all manner of constraints on its deregulation orders; they will have no effect unless they are enforced. 9 See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 372 (1989). 14 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting from analysis to rationalization.” Herrmann, Injunctions for NEPA Violations: Balancing the Equities, 59 U. Chi. L. Rev. 1263, 1289 (1992); see also see 40 CFR §1502.5 (EIS should be implemented in manner assuring it “will not be used to rationalize or justify decisions already made”). Although the majority does not dispute that the District Court could have reasonably concluded that NEPA re quires an EIS for even partial deregulation of RRA, it suggests that any such conclusion would have been in compatible with the court’s decision to permit limited harvesting by farmers who had already planted RRA. See ante, at 20.10 I do not see the “inconsisten[cy].” Ibid. NEPA does not apply to actions by federal courts. See 40 CFR §1508.12. Exercising its equitable discretion to balance the interests of the parties and the public, the District Court would have been well within its rights to find that NEPA requires an EIS before the agency grants “Monsanto’s deregulation petition, even in part,” App. to Pet. for Cert. 108a, yet also to find that a partial stay of the vacatur was appropriate to protect the interests of those farmers who had already acted in good-faith reliance on APHIS. Similarly, I do not agree that the District Court’s ruling was “premature” because APHIS had not yet effected any partial deregulations, ante, at 19. Although it is “for the agency to decide whether and to what extent” it will pur sue deregulation, ante, at 17, the court’s application of NEPA to APHIS’s regulation of RRA might have con trolled any deregulation during the pendency of the EIS. Petitioners and APHIS had already come back to the court —————— 10 The Court states that the order permitted both harvesting and planting. But the court’s final judgment permitted only sale and harvesting of RRA planted before March 30, 2007, more than a month before the judgment. See App. to Pet. for Cert. 109a; see also id., at 79a. Cite as: 561 U. S. ____ (2010) 15 STEVENS, J., dissenting with a proposed partial deregulation order which, the court explained, was incompatible with its determination that there is a substantial risk of gene spreading and that APHIS lacks monitoring capacity. That same concern would apply to any partial deregulation order. The court therefore had good reason to make it clear, upfront, that the parties should not continue to expend resources pro posing such orders, instead of just moving ahead with an EIS. Cf. Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941) (“The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision”). Indeed, it was APHIS itself that “sought to ‘streamline’ ” the process. Ante, at 18. Injunctive Relief Second, the District Court’s judgment can be understood as a reasonable response to the nature of the risks posed by RRA. Separate and apart from NEPA’s requirement of an EIS, these risks were sufficiently serious, in my view, that the court’s injunction was a permissible exercise of its equitable authority. The District Court found that gene transfer can and does occur, and that if it were to spread through open land the environmental and economic consequences would be devastating. Cf. Amoco Production Co. v. Gambell, 480 U.S. 531, 545 (1987) (“Environmental injury, by its na ture, can seldom be adequately remedied by money dam ages and is often permanent or at least of long duration, i.e., irreparable”). Although “a mere possibility of a future nuisance will not support an injunction,” courts have never required proof “that the nuisance will occur”; rather, “it is sufficient . . . that the risk of its happening is greater than a reasonable man would incur.” 5 J. Pomeroy, A Treatise on Equity Jurisprudence and Equitable Reme dies, §1937 (§523), p. 4398 (2d ed. 1919). Once gene trans fer occurred in American fields, it “would be difficult—if 16 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting not impossible—to reverse the harm.” Hollingsworth v. Perry, 558 U. S. __, __ (2010) (per curiam) (slip op., at 12). Additional considerations support the District Court’s judgment. It was clear to the court that APHIS had only limited capacity to monitor planted RRA, and some RRA had already been planted. The marginal threat posed by additional planting was therefore significant. Injunctive remedies are meant to achieve a “nice adjustment and reconciliation between the competing claims” of injury by “mould[ing] each decree to the necessities of the case.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (internal quotation marks omitted). Under these circum stances, it was not unreasonable for the court to conclude that the most equitable solution was to allocate the lim ited amount of potentially safe RRA to the farmers who had already planted that crop.11 The Court suggests that the injunction was nonetheless too sweeping because “a partial deregulation need not cause respondents any injury at all . . . if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexistent.” Ante, at 21. The Court appears to reach this conclusion by citing one particular study (in a voluminous record), rather than any findings of fact.12 Even assuming that this study is —————— 11 As explained previously, I do not see the court’s broad injunction as “inconsistent,” ante, at 20, with its decision that farmers who had already planted RRA could harvest their crop. The equities are differ ent for farmers who relied on the agency than for companies like Monstanto that developed an organism knowing it might be regulated; and APHIS could monitor only a limited amount of RRA. 12 The Court also hypothesizes a set of growing conditions that would isolate RRA from the plaintiffs in this case, even if not from other farmers. See ante, at 21–22. As already explained, these hypotheticals are rather unrealistic. See n. 8, supra. And, given that the plaintiffs include environmental organizations as well as farmer and consumer associations, it is hard to see how APHIS could so carefully isolate and protect their interests. In any event, because APHIS concedes that it Cite as: 561 U. S. ____ (2010) 17 STEVENS, J., dissenting correct, the Court ignores the District Court’s findings that gene flow is likely and that APHIS has little ability to monitor any conditions imposed on a partial deregulation. Limits on planting or harvesting may operate fine in a laboratory setting, but the District Court concluded that many limits will not be followed and cannot be enforced in the real world.13 Against that background, it was perfectly reasonable to wait for an EIS. APHIS and petitioners argued to the District Court that partial deregulation could be safely implemented, they submitted evidence intended to show that planting restrictions would prevent the spread of the newly engineered gene, and they contested “virtually every factual issue relating to possible environmental harm.” Geertson Seed Farms v. Johanns, 570 F.3d 1130, 1135 (CA9 2009). But lacking “the benefit of the develop ment of all the relevant data,” App. to Pet. for Cert. 68a, the District Court did not find APHIS’s and petitioners’ assertions to be convincing. I cannot say that I would have found otherwise. It was reasonable for the court to conclude that planting could not go forward until more —————— cannot monitor such limits, rules that protect these or any other parties may be merely hortatory in practice. Moreover, although we have not squarely addressed the issue, in my view “[t]here is no general re quirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169 (CA9 1987). To limit an injunc tion against a federal agency to the named plaintiffs “would only encourage numerous other” regulated entities “to file additional law suits in this and other federal jurisdictions.” Livestock Marketing Assn. v. United States Dept. of Agriculture, 207 F. Supp. 2d 992, 1007 (SD 2002), aff’d, 335 F.3d 711, 726 (CA8 2003). 13 The majority notes that the District Court acknowledged, at a hear ing several months before it issued the judgment, that a simple but slightly overinclusive remedy may be preferable to an elaborate set of planting conditions. See ante, at 22, n. 6. Quite right. As the District Court said to APHIS’s lawyer at that hearing, if the agency issues an elaborate set of precautions, “I don’t know how you even start to enforce it.” App. to Pet. for Cert. 190a–191a. 18 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting complete study, presented in an EIS, showed that the known problem of gene flow could, in reality, be prevented.14 The District Court’s decision that more study was needed to assess whether limits on deregulation could prevent environmental damage is further reinforced by the statutory context in which the issue arose. A court’s equitable discretion must be guided by “recognized, de fined public policy.” Meredith v. Winter Haven, 320 U.S. 228, 235 (1943); see also Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944) (explaining that when a court evaluates an agency’s decision against the background of a federal statute, the court’s discretion “must be exercised in light of the large objectives of the Act”). Congress recognized in NEPA that complex environmental cases often require exceptionally sophisticated scientific determinations, and that agency decisions should not be made on the basis of “incomplete information.” Marsh v. Oregon Natural Re sources Council, 490 U.S. 360, 371 (1989). Congress also recognized that agencies cannot fully weigh the conse quences of these decisions without obtaining public com ments through an EIS. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).15 While a court may not presume that a NEPA violation requires an injunction, it may take into account the principles embod —————— 14 I suspect that if APHIS and petitioners had come back to the court with more convincing evidence prior to completing an EIS, and moved to modify the court’s order, the court would have done so. Indeed, the District Court showed a willingness to recalibrate its order when it amended its judgment just a few months after the judgment’s issuance in light of APHIS’s submission that certain requirements were imprac tical. See App. to Pet. for Cert. 111a–114a. 15 Accordingly, while “NEPA itself does not mandate particular re sults,” it does mandate a particular process and embodies the principle that federal agencies should “carefully conside[r] detailed information” before incurring potential environmental harm. Robertson, 490 U.S., at 350, 349. Cite as: 561 U. S. ____ (2010) 19 STEVENS, J., dissenting ied in the statute in considering whether an injunction would be appropriate. This District Court had before it strong evidence that gene transmission was likely to occur and that limits on growing could not be enforced. It also had a large amount of highly detailed evidence about whether growing restrictions, even if enforced, can prevent transmission. That evidence called into question the agency’s own claims regarding the risks posed by partial deregulation. In enjoining partial deregulation until it had the benefit of an EIS to help parse the evidence, the court acted with exactly the sort of caution that Congress endorsed in NEPA. Finally, it bears mention that the District Court’s ex perience with the case may have given it grounds for skepticism about the representations made by APHIS and petitioners. Sometimes “one judicial actor is better posi tioned than another to decide the issue in question.” Miller v. Fenton, 474 U.S. 104, 114 (1985). A “district court may have insights not conveyed by the record.” Pierce v. Underwood, 487 U.S. 552, 560 (1988). In this case, the agency had attempted to deregulate RRA without an EIS in spite of ample evidence of potential environ mental harms. And when the court made clear that the agency had violated NEPA, the agency responded by seeking to “ ‘streamline’ ” the process, ante, at 18, submit ting a deregulation proposal with Monsanto that suffered from some of the same legal and empirical holes as its initial plan to deregulate. Against that background, the court may have felt it especially prudent to wait for an EIS before concluding that APHIS could manage RRA’s threat to the environment. * * * The District Court in this case was put in an “unenvi able position.” Ibid. In front of it was strong evidence that RRA poses a serious threat to the environment and to 20 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting American business, and that limits on RRA deregulation might not be followed or enforced—and that even if they were, the newly engineered gene might nevertheless spread to other crops. Confronted with those disconcert ing submissions, with APHIS’s unlawful deregulation decision, with a group of farmers who had staked their livelihoods on APHIS’s decision, and with a federal statute that prizes informed decisionmaking on matters that seriously affect the environment, the court did the best it could. In my view, the District Court was well within its discretion to order the remedy that the Court now re verses. Accordingly, I respectfully dissent

The Court does not dispute the District Court’s critical findings of fact: First, Roundup Ready Alfalfa (RRA) can contaminate other plants. See App. to Pet. for Cert. 3a, 54a, 2a. Second, even planting in a controlled setting had led to contamination in some instances. See at 9a–70a. Third, the Animal and Plant Health Inspection Service (APHIS) has limited ability to monitor or enforce limitations on planting. See at 70a. And fourth, genetic contamination from RRA could decimate farmers’ livelihoods and the American alfalfa market for years to come. See at 71a; see also at 29a–30a. Instead, the majority faults the District Court for “enjoining APHIS from partially deregulating RRA.” Ante, at 1. In my view, the District Court may not have actually ordered such relief, and we should not so readily assume that it did. Regardless, the District Court did not abuse its discretion when, after considering the voluminous record and making the aforementioned findings, it issued the order now before us. I To understand the District Court’s judgment, it is nec essary to understand the background of this litigation. Petitioner Monsanto Company (Monsanto) is a large cor 2 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting poration that has long produced a weed killer called Roundup. After years of experimentation, Monsanto and co-petitioner Forage Genetics International (FGI) geneti cally engineered a mutation in the alfalfa genome that makes the plant immune to Roundup. Monsanto and FGI’s new product, RRA, is “the first crop that has been engineered to resist a[n] herbicide” and that can transmit the genetically engineered gene to other plants. See App. to Pet. for Cert. 45a. In 2004, in the midst of a deregulatory trend in the agricultural sector, petitioners asked APHIS to deregulate RRA, thereby allowing it to be sold and planted nation wide. App. 101a. Rather than conducting a detailed analysis and preparing an “environmental impact state ment” (EIS), as required by the National Environmental Policy Act of 199 (NEPA) for every “major Federal ac tio[n] significantly affecting the quality of the human environment,” 42 U.S. C. APHIS merely conducted an abbreviated “environmental assessment” (EA). During the -month period in which APHIS allowed public comment on its EA, the agency received 3 com ments, 520 of which opposed deregulation. App. to Pet. for Cert. 29a. Farmers and scientists opined that RRA could contaminate alfalfa that has not been genetically modified, destroying the American export market for alfalfa and, potentially, contaminating other plants and breeding a new type of pesticide-resistant weed. at 29a–30a. Despite substantial evidence that RRA genes could transfer to other plants, APHIS issued a Finding of No Significant Impact and agreed to deregulate RRA “uncon ditionally,” ante, at 4. With no EIS to wait for and no regulation blocking its path, petitioners began selling RRA. Farmers and environmental groups swiftly brought this lawsuit to challenge APHIS’s decision to deregulate, raising claims under NEPA and other statutes. The District Court carefully reviewed a long record and Cite as: 51 U. S. (2010) 3 STEVENS, J., dissenting found that “APHIS’s reasons for concluding” that the risks of genetic contamination are low were “not ‘convincing.’ ” App. to Pet. for Cert. 3a. A review of APHIS’s internal documents showed that individuals within the agency warned that contamination might occur. APHIS rested its decision to deregulate on its assertion that contamination risk is “not significant because it is the organic and con ventional farmers’ responsibility” to protect themselves and the environment. Yet the agency drew this conclusion without having investigated whether such farmers “can, in fact, protect their crops from contamina tion.” The District Court likewise found that APHIS’s reasons for disregarding the risk of pesticide resistant weeds were speculative and “not convincing.” at 4a. The agency had merely explained that if weeds acquire roundup resistance, farmers can use “ ‘[a]l ternative herbicides.’ ” In light of the “acknowl edged” risk of RRA gene transmission and the potential “impact on the development of Roundup resistant weeds,” the court concluded that there was a significant possibility of serious environmental harm, and granted summary judgment for the plaintiffs. at 54a; see also at 45a. At this point, the question of remedy arose. The parties submitted proposed final judgments, and several corpora tions with an interest in RRA, including Monsanto, sought permission to intervene. The District Court granted their motion and agreed “to give them the opportunity to pre sent evidence to assist the court in fashioning the appro priate scope of whatever relief is granted.” at 54a (internal quotation marks omitted). While the District Court considered the proposed judg ments, it issued a preliminary injunction. Ordinarily, the court explained, the remedy for failure to conduct an EIS is to vacate the permit that was unlawfully given—the result of which, in this case, would be to prohibit any use of RRA. See at 55a; see also at 5a. But this case 4 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting presented a special difficulty: Following APHIS’s unlawful deregulation order, some farmers had begun planting genetically modified RRA. at 55a. In its preliminary injunction, the District Court ordered that no new RRA could be planted until APHIS completed the EIS or the court determined that some other relief was appropriate. But, so as to protect these farmers, the court declined to prohibit them from “harvesting, using, or selling” any crops they had already planted. at 5a. And “to minimize the harm to those growers who intend to immi nently plant Roundup Ready alfalfa,” the court permitted “[t]hose growers who intend to plant [RRA] in the next three weeks and have already purchased the seed” to go ahead and plant. at 5a (emphasis deleted). Essen tially, the court grandfathered in those farmers who had relied, in good faith, on APHIS’s actions. Before determining the scope of its final judgment, the District Court invited the parties and intervenors to sub mit “whatever additional evidence” they “wish[ed] to provide,” and it scheduled additional oral argument. at 5a–59a. The parties submitted “competing proposals for permanent injunctive relief.” at 0a. The plain tiffs requested that no one—not even the grandfathered-in farmers—be allowed to plant, grow, or harvest RRA until the full EIS had been prepared. at 4a. APHIS and the intervenors instead sought a remedy that would “fa cilitat[e] the continued and dramatic growth” of RRA: a “partial deregulation” order that would permit planting subject to certain conditions, such as specified minimum distances between RRA and conventional alfalfa and special cleaning requirements for equipment used on the genetically modified crop. See at 0a–4a. The court adopted a compromise. First, it declined to adopt the APHIS-Monsanto proposal. APHIS itself had acknowledged that “gene transmission could and had occurred,” and that RRA “could result in the development Cite as: 51 U. S. (2010) 5 STEVENS, J., dissenting of Roundup-resistant weeds.” at 1a–2a. In light of the substantial record evidence of these risks, the court would not agree to a nationwide planting scheme “without the benefit of the development of all the relevant data,” as well as public comment about whether contamination could be controlled. at a. The “partial deregulation” proposed by petitioners, the court noted, was really “de regulation with certain conditions,” at 9a—which, for the same reasons given in the court’s earlier order, re quires an EIS, The court pointed out numerous problems with the APHIS-Monsanto proposal. Neither APHIS nor Monsanto had provided “evidence that sug gests whether, and to what extent, the proposed interim conditions” would actually “be followed,” and comparable conditions had failed to prevent contamination in certain limited settings. at 9a–70a. APHIS, moreover, conceded that “it does not have the resources to inspect” the RRA that had already been planted, and so could not possibly be expected “to adequately monitor the more than one million acres of [RRA] intervenors estimate [would] be planted” under their proposal. That was especially problematic because any plan to limit contamination depended on rules about harvesting, and farmers were unlikely to follow those rules. at 71a. “APHIS ha[d] still not made any inquiry” into numerous factual concerns raised by the court in its summary judgment order issued several months earlier. at 70a. Next, the court rejected the plaintiffs’ proposed remedy of “enjoin[ing] the harvesting and sale of already planted” RRA. at 7a. Although any planting or harvesting of RRA poses a contamination risk, the court reasoned that the equities were different for those farmers who had already invested time and money planting RRA in good faith reliance on APHIS’s deregulation order. And small amounts of harvesting could be more easily monitored. Rather than force the farmers to tear up their crops, the MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting court imposed a variety of conditions on the crops’ han dling and distribution. at 77a. As to all other RRA, however, the court sided with the plaintiffs and enjoined planting during the pendency of the EIS. Balancing the equities, the court explained that the risk of harm was great. “[C]ontamination cannot be undone; it will destroy the crops of those farmers who do not sell genetically modified alfalfa.” at 71a. And because those crops “cannot be replanted for two to four years,” that loss will be even greater. On the other side of the balance, the court recognized that some farmers may wish to switch to genetically modified alfalfa immedi ately, and some companies like Monsanto want to start selling it to them just as fast. But, the court noted, RRA is a small percentage of those companies’ overall business; unsold seed can be stored; and the companies “ ‘have [no] cause to claim surprise’ ” as to any loss of anticipated revenue, as they “were aware of plaintiffs’ lawsuit” and “nonetheless chose to market” RRA. at 72a. Thus, the District Court stated that it would “vacat[e] the June 2005 deregulation decision”; “enjoi[n] the plant ing of [RRA] in the United States after March 30, 2007,” the date of the decision, “pending the government’s com pletion of the EIS and decision on the deregulation peti tion”; and impose “conditions on the handling and identifi cation of already-planted [RRA].” at 79a. On the same day, the court issued its judgment. In relevant part, the judgment states: “The federal defendants’ June 14, 2005 Determination of Nonregulated Status for [RRA] is VACATED. Be fore granting Monsanto’s deregulation petition, even in part, the federal defendants shall prepare an [EIS]. Until the federal defendants prepare the EIS and de cide the deregulation petition, no [RRA] may be planted. [RRA already] planted before March 30, Cite as: 51 U. S. (2010) 7 STEVENS, J., dissenting 2007 may be grown, harvested and sold subject to the following conditions.” at 10a–109a. II Before proceeding to address the Court’s opinion on its own terms, it is important to note that I have reservations about the validity of those terms. The Court today rests not only the bulk of its analysis but also the primary basis for our jurisdiction on the premise that the District Court enjoined APHIS from partially deregulating RRA in any sense. See ante, at 9–11, 1–23.1 That is a permissible, but not necessarily correct, reading of the District Court’s judgment. So far as I can tell, until petitioners’ reply brief, neither petitioners nor the Government submitted to us that the District Court had exceeded its authority in this manner. And, indeed, the Government had not raised this issue in any court at all. Petitioners did not raise the issue in any of their three questions presented or in the body of their petition for a writ or certiorari. And they did not raise the issue in their opening briefs to this Court. Only after respondents alleged that Monsanto’s injury would not be redressed by vacating the injunction, insofar as RRA would still be a regulated article, did petitioners bring the issue to the Court’s attention. Explaining why they have a redressable injury, petitioners alleged that the District Court’s order prevents APHIS from “implement[ing] an[y] —————— 1 See also ante, at 19–20 (“[T]he District Court barred the agency from pursuing any deregulation—no matter how limited the geographic area in which planting of RRA would be allowed, how great the isola tion distances mandated between RRA fields and fields for growing non-genetically-engineered alfalfa, how stringent the regulations governing harvesting and distribution, how robust the enforcement mechanisms available at the time of the decision, and—consequently— no matter how small the risk that the planting authorized under such conditions would adversely affect the environment in general and respondents in particular” (emphasis deleted)). MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting interim solution allowing continued planting.” Reply Brief for Petitioners 5. APHIS, the party that the Court says was wrongly “barred from pursuing any deregulation,” even “in accordance with the procedures established by law,” ante, at 19, did not complain about this aspect of the District Court’s order even in its reply brief. Thus, notwithstanding that petitioners “adequately preserved their objection that the vacated deregulation decision should have been replaced by APHIS’s proposed injunction,” ante, at (emphasis added), the key legal premise on which the Court decides this case was never adequately presented. Of course, this is not standard—or sound—judicial practice. See Kumho Tire (STEVENS, J., concurring in part and dissenting in part). Today’s decision illus trates why, for it is quite unclear whether the Court’s premise is correct, and the Court has put itself in the position of deciding legal issues without the aid of briefing. In my view, the District Court’s judgment can fairly be read to address only (1) total deregulation orders of the kind that spawned this lawsuit, and (2) the particular partial deregulation order proposed to the court by APHIS. This interpretation of the judgment is more consistent with the District Court’s accompanying opinion, which concluded by stating that the court “will enter a final judgment” “ordering the government to prepare an EIS before [the court] makes a decision on Monsanto’s deregu lation petition.” App. to Pet. for Cert. 79a. The language of that opinion does not appear to “ba[r] the agency from pursuing any deregulation—no matter how limited,” ante, at 19 (emphasis deleted). This interpretation is also more consistent with APHIS’s own decision not to contest what, according to the Court, was an unprecedented infringe ment on the agency’s statutory authority. To be sure, the District Court’s judgment is somewhat opaque. But it is troubling that we may be asserting Cite as: 51 U. S. (2010) 9 STEVENS, J., dissenting jurisdiction and deciding a highly factbound case based on nothing more than a misunderstanding. It is also trou bling that we may be making law without adequate brief ing on the critical questions we are passing upon. I would not be surprised if on remand the District Court merely clarified its order. III Even assuming that the majority has correctly inter preted the District Court’s judgment, I do not agree that we should reverse the District Court. At the outset, it is important to observe that when a district court is faced with an unlawful agency action, a set of parties who have relied on that action, and a prayer for relief to avoid irreparable harm, the court is operating under its powers of equity. In such a case, a court’s func tion is “to do equity and to mould each decree to the neces sities of the particular case.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). “Flexibility” and “practicality” are the touchtones of these remedial determinations, as “the public interest,” “private needs,” and “competing private claims” must all be weighed and reconciled against the background of the court’s own limitations and its particu lar familiarity with the case. at 329–330.2 When a district court takes on the equitable role of adjusting legal obligations, we review the remedy it crafts —————— 2 See also, e.g., Railroad Comm’n of Tex. v. Pullman Co., U.S. 49, 500 (1941) (“The history of equity jurisdiction is the history of regard for public consequences. There have been as many and as variegated applications of this supple principle as the situations that have brought it into play”); (“[A] court of equity ha[s] unquestionable authority to apply its flexible and comprehensive jurisdiction in such manner as might be necessary to the right administration of justice between the parties”). Indeed, the very “ground of this jurisdiction” is a court’s “ability to give a more complete and perfect remedy.” 2 J. Story, Equity Jurisprudence p. 225 (M. Bigelow ed. 13th ed. 1). 10 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting for abuse of discretion. “[D]eference,” we have explained, “is the hallmark of abuse-of-discretion review.” General Elec. Although equitable remedies are “not left to a trial court’s ‘inclina tion,’ ” they are left to the court’s “ ‘judgment.’ ” Albemarle Paper (quoting United (No. 14,92d) (CC Va. 107) (Marshall, C. J.)). The principles set forth in applicable federal statutes may inform that judgment. See United (“[A] court sitting in equity cannot ignore the judgment of Congress, deliberately expressed in legislation” (internal quotation marks omit ted)). And historically, courts have had particularly broad equitable power—and thus particularly broad discretion— to remedy public nuisances and other “ ‘purprestures upon public rights and properties,’ ” Mugler v. Kansas, 123 U.S. 23, 72 (17),3 which include environmental harms.4 In my view, the District Court did not “unreasonably exercis[e]” its discretion, 512 (190), even if it did categorically prohibit partial deregulation pending completion of the EIS. Rather, the District Court’s judgment can be understood as either of two reasonable exercises of its equitable powers. Equitable Application of Administrative Law First, the District Court’s decision can be understood as an equitable application of administrative law. Faced with two different deregulation proposals, the District Court appears to have vacated the deregulation that had already occurred, made clear that NEPA requires an EIS —————— 3 See (per curiam) (reviewing history of injunctions to prevent public nuisances). 4 See, e.g., (air pollution); Arizona Copper (water pollution). Cite as: 51 U. S. (2010) 11 STEVENS, J., dissenting for any future deregulation of RRA, and partially stayed the vacatur to the extent it affects farmers who had al ready planted RRA.5 Under NEPA, an agency must prepare an EIS for “every major Federal actio[n] significantly affecting the qual ity of the human environment.” 42 U.S. C. Recall that the District Court had found, on the basis of substantial evidence, that planting RRA can cause genetic contamination of other crops, planting in controlled set tings had led to contamination, APHIS is unable to moni tor or enforce limitations on planting, and genetic con tamination could decimate the American alfalfa market. In light of that evidence, the court may well have con cluded that any deregulation of RRA, even in a “limited geographic area” with “stringent regulations gov erning harvesting and distribution,” ante, at 19–20, re —————— 5 See Reply Brief for Federal Respondents 3. There is an ongoing debate about the role of equitable adjustments in administrative law. See, e.g., Levin, Vacation at Sea: Judicial Remedies and Equitable Discretion in Administrative Law, 53 Duke L. J. 291 The parties to this appeal and the majority assume that the District Court’s remedy was crafted under its equity powers, and I will do the same. One of the many matters not briefed in this case is how limited a partial deregulation can be. It is not clear whether the sort of ex tremely limited “partial deregulations” envisioned by the Court, see ante, at 19–23, in which RRA is “deregulated” in one small geographic area pursuant to stringent restrictions, could be achieved only through “partial deregulation” actions, or whether they could also (or exclu sively) be achieved through a more case-specific permit process. Under the applicable regulations, a regulated article may still be used subject to a permitting process. See 340.4 (2010). These permits “prescribe confinement conditions and standard operating procedures to maintain confinement of the genetically engineered organism.” Introduction of Organisms and Products Altered or Pro duced Through Genetic Engineering, 39022 (2007) (hereinafter Introduction). Ordinarily, “[o]nce an article has been deregulated, APHIS does not place any restrictions or requirements on its use.” As of 2007, APHIS had never—not once—granted partial approval of a 12 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting quires an EIS under NEPA. See generally D. Mandelker, NEPA Law and Litigation (2d ed. 2009) (de scribing when an EIS is required); cf. (NEPA embodies “sweeping commitment” to environ mental safety and principle that “the agency will not act on incomplete information, only to regret its decision after it is too late to correct”). Indeed, it appears that any de regulation of a genetically modified, herbicide-resistant crop that can transfer its genes to other organisms and cannot effectively be monitored easily fits the criteria for when an EIS is required.7 That is especially so when, as in this case, the environmental threat is novel. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. (200) (slip op., at 13) (EIS is more important when party “is conducting a new type of activity with completely unknown effects on the environment”). —————— petition for nonregulated status. USDA, Introduction of Genetically Engineered Organisms, Draft Environmental Impact Statement, July 2007, p. 11, online at http://www.aphis.usda.gov/brs/pdf/complete_ eis.pdf (as visited June 1, 2010, and available in Clerk of Court’s case file). In 2007, APHIS began contemplating a “new system” to allow for the release and use of genetically modified organisms, for “special cases” in which there are risks “that could be mitigated with conditions to ensure safe commercial use.” Introduction 39024 (em phasis added). 7 See, e.g., (2009) (determination whether an EIS is required turns on both “[d]irect effects” and “[i]ndirect effects,” and “include[s] those resulting from actions which may have both beneficial and detrimental effects even if on balance the agency believes that the effect will be beneficial”); (determination whether an EIS is required turns on “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial”); (determination whether an EIS is required turns on “[t]he degree to which the possible effects on the quality of the human environment are highly uncertain or involve unique or unknown risks”). The Court posits a hypothetical in which APHIS deregulates RRA limited to a remote area in which alfalfa is not grown, and issues an Cite as: 51 U. S. (2010) 13 STEVENS, J., dissenting Moreover, given that APHIS had already been ordered to conduct an EIS on deregulation of RRA, the court could have reasonably feared that partial deregulation would undermine the agency’s eventual decision. Courts con fronted with NEPA violations regularly adopt interim measures to maintain the status quo, particularly if allow ing agency action to go forward risks foreclosing alterna tive courses of action that the agency might have adopted following completion of an EIS. See D. Mandelker, NEPA Law and Litigation The applicable regulations, to which the District Court owed deference,9 provide that during the preparation of an EIS, “no action concerning the [agency’s] proposal shall be taken which would [h]ave an adverse environmental impact” or “[l]imit the choice of reasonable alternatives.” (a) (2009). As exemplified by the problem of what to do with farmers who had already purchased or planted RRA prior to the District Court’s judgment, even minimal deregula tion can limit future regulatory options. “Courts must remember that in many cases allowing an agency to pro ceed makes a mockery of the EIS process, converting it —————— accompanying order “mandating isolation distances so great as to eliminate any appreciable risk of gene flow to the crops of conventional farmers who might someday choose to plant in the surrounding area.” Ante, at 21. At the outset, it is important to note the difference be tween a plausible hypothetical and a piece of fiction. At least as of 2007, APHIS had never granted partial approval of a petition for nonregulated status. See n. And I doubt that it would choose to deregulate genetically modified alfalfa in a place where the growing conditions and sales networks for the product are so poor that no farmer already plants it. Moreover, the notion that this imagined deregulation would pose virtually no environmental risk ignores one of the District Court’s critical findings of fact: APHIS has very limited capacity to monitor its own restrictions. The agency could place all manner of constraints on its deregulation orders; they will have no effect unless they are enforced. 9 See 14 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting from analysis to rationalization.” Herrmann, Injunctions for NEPA Violations: Balancing the Equities, 59 U. Chi. L. Rev. 123, 129 (1992); see also see (EIS should be implemented in manner assuring it “will not be used to rationalize or justify decisions already made”). Although the majority does not dispute that the District Court could have reasonably concluded that NEPA re quires an EIS for even partial deregulation of RRA, it suggests that any such conclusion would have been in compatible with the court’s decision to permit limited harvesting by farmers who had already planted RRA. See ante, at 20.10 I do not see the “inconsisten[cy].” NEPA does not apply to actions by federal courts. See 40 CFR Exercising its equitable discretion to balance the interests of the parties and the public, the District Court would have been well within its rights to find that NEPA requires an EIS before the agency grants “Monsanto’s deregulation petition, even in part,” App. to Pet. for Cert. 10a, yet also to find that a partial stay of the vacatur was appropriate to protect the interests of those farmers who had already acted in good-faith reliance on APHIS. Similarly, I do not agree that the District Court’s ruling was “premature” because APHIS had not yet effected any partial deregulations, ante, at 19. Although it is “for the agency to decide whether and to what extent” it will pur sue deregulation, ante, at 17, the court’s application of NEPA to APHIS’s regulation of RRA might have con trolled any deregulation during the pendency of the EIS. Petitioners and APHIS had already come back to the court —————— 10 The Court states that the order permitted both harvesting and planting. But the court’s final judgment permitted only sale and harvesting of RRA planted before March 30, 2007, more than a month before the judgment. See App. to Pet. for Cert. 109a; see also at 79a. Cite as: 51 U. S. (2010) 15 STEVENS, J., dissenting with a proposed partial deregulation order which, the court explained, was incompatible with its determination that there is a substantial risk of gene spreading and that APHIS lacks monitoring capacity. That same concern would apply to any partial deregulation order. The court therefore had good reason to make it clear, upfront, that the parties should not continue to expend resources pro posing such orders, instead of just moving ahead with an EIS. Cf. Railroad Comm’n of Tex. v. Pullman Co., U.S. 49, 500 (1941) (“The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision”). Indeed, it was APHIS itself that “sought to ‘streamline’ ” the process. Ante, at 1. Injunctive Relief Second, the District Court’s judgment can be understood as a reasonable response to the nature of the risks posed by RRA. Separate and apart from NEPA’s requirement of an EIS, these risks were sufficiently serious, in my view, that the court’s injunction was a permissible exercise of its equitable authority. The District Court found that gene transfer can and does occur, and that if it were to spread through open land the environmental and economic consequences would be devastating. Cf. Amoco Production Co. v. Gambell, 40 U.S. 531, 545 (197) (“Environmental injury, by its na ture, can seldom be adequately remedied by money dam ages and is often permanent or at least of long duration, i.e., irreparable”). Although “a mere possibility of a future nuisance will not support an injunction,” courts have never required proof “that the nuisance will occur”; rather, “it is sufficient that the risk of its happening is greater than a reasonable man would incur.” 5 J. Pomeroy, A Treatise on Equity Jurisprudence and Equitable Reme dies, p. 439 (2d ed. 1919). Once gene trans fer occurred in American fields, it “would be difficult—if 1 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting not impossible—to reverse the harm.” Hollingsworth v. Perry, 55 U. S. (2010) (per curiam) (slip op., at 12). Additional considerations support the District Court’s judgment. It was clear to the court that APHIS had only limited capacity to monitor planted RRA, and some RRA had already been planted. The marginal threat posed by additional planting was therefore significant. Injunctive remedies are meant to achieve a “nice adjustment and reconciliation between the competing claims” of injury by “mould[ing] each decree to the necessities of the case.” 45 U.S. 305, (internal quotation marks omitted). Under these circum stances, it was not unreasonable for the court to conclude that the most equitable solution was to allocate the lim ited amount of potentially safe RRA to the farmers who had already planted that crop.11 The Court suggests that the injunction was nonetheless too sweeping because “a partial deregulation need not cause respondents any injury at all if the scope of the partial deregulation is sufficiently limited, the risk of gene flow to their crops could be virtually nonexistent.” Ante, at 21. The Court appears to reach this conclusion by citing one particular study (in a voluminous record), rather than any findings of fact.12 Even assuming that this study is —————— 11 As explained previously, I do not see the court’s broad injunction as “inconsistent,” ante, at 20, with its decision that farmers who had already planted RRA could harvest their crop. The equities are differ ent for farmers who relied on the agency than for companies like Monstanto that developed an organism knowing it might be regulated; and APHIS could monitor only a limited amount of RRA. 12 The Court also hypothesizes a set of growing conditions that would isolate RRA from the plaintiffs in this case, even if not from other farmers. See ante, at 21–22. As already explained, these hypotheticals are rather unrealistic. See n. And, given that the plaintiffs include environmental organizations as well as farmer and consumer associations, it is hard to see how APHIS could so carefully isolate and protect their interests. In any event, because APHIS concedes that it Cite as: 51 U. S. (2010) 17 STEVENS, J., dissenting correct, the Court ignores the District Court’s findings that gene flow is likely and that APHIS has little ability to monitor any conditions imposed on a partial deregulation. Limits on planting or harvesting may operate fine in a laboratory setting, but the District Court concluded that many limits will not be followed and cannot be enforced in the real world.13 Against that background, it was perfectly reasonable to wait for an EIS. APHIS and petitioners argued to the District Court that partial deregulation could be safely implemented, they submitted evidence intended to show that planting restrictions would prevent the spread of the newly engineered gene, and they contested “virtually every factual issue relating to possible environmental harm.” Geertson Seed 11 (CA9 2009). But lacking “the benefit of the develop ment of all the relevant data,” App. to Pet. for Cert. a, the District Court did not find APHIS’s and petitioners’ assertions to be convincing. I cannot say that I would have found otherwise. It was reasonable for the court to conclude that planting could not go forward until more —————— cannot monitor such limits, rules that protect these or any other parties may be merely hortatory in practice. Moreover, although we have not squarely addressed the issue, in my view “[t]here is no general re quirement that an injunction affect only the parties in the suit.” 43 F.2d 113, 119 (CA9 197). To limit an injunc tion against a federal agency to the named plaintiffs “would only encourage numerous other” regulated entities “to file additional law suits in this and other federal jurisdictions.” Livestock Marketing Assn. v. United States Dept. of Agriculture, (SD 2002), aff’d, 3 F.3d 711, 72 13 The majority notes that the District Court acknowledged, at a hear ing several months before it issued the judgment, that a simple but slightly overinclusive remedy may be preferable to an elaborate set of planting conditions. See ante, at 22, n. Quite right. As the District Court said to APHIS’s lawyer at that hearing, if the agency issues an elaborate set of precautions, “I don’t know how you even start to enforce it.” App. to Pet. for Cert. 190a–191a. 1 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting complete study, presented in an EIS, showed that the known problem of gene flow could, in reality, be prevented.14 The District Court’s decision that more study was needed to assess whether limits on deregulation could prevent environmental damage is further reinforced by the statutory context in which the issue arose. A court’s equitable discretion must be guided by “recognized, de fined public policy.” Meredith v. Winter Haven, 320 U.S. 22, 2 (1943); see also Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944) (explaining that when a court evaluates an agency’s decision against the background of a federal statute, the court’s discretion “must be exercised in light of the large objectives of the Act”). Congress recognized in NEPA that complex environmental cases often require exceptionally sophisticated scientific determinations, and that agency decisions should not be made on the basis of “incomplete information.” Marsh v. Oregon Natural Re sources Council, Congress also recognized that agencies cannot fully weigh the conse quences of these decisions without obtaining public com ments through an EIS. See 015 While a court may not presume that a NEPA violation requires an injunction, it may take into account the principles embod —————— 14 I suspect that if APHIS and petitioners had come back to the court with more convincing evidence prior to completing an EIS, and moved to modify the court’s order, the court would have done so. Indeed, the District Court showed a willingness to recalibrate its order when it amended its judgment just a few months after the judgment’s issuance in light of APHIS’s submission that certain requirements were imprac tical. See App. to Pet. for Cert. 111a–a. 15 Accordingly, while “NEPA itself does not mandate particular re sults,” it does mandate a particular process and embodies the principle that federal agencies should “carefully conside[r] detailed information” before incurring potential environmental harm. Robertson, 490 U.S., at 0, 349. Cite as: 51 U. S. (2010) 19 STEVENS, J., dissenting ied in the statute in considering whether an injunction would be appropriate. This District Court had before it strong evidence that gene transmission was likely to occur and that limits on growing could not be enforced. It also had a large amount of highly detailed evidence about whether growing restrictions, even if enforced, can prevent transmission. That evidence called into question the agency’s own claims regarding the risks posed by partial deregulation. In enjoining partial deregulation until it had the benefit of an EIS to help parse the evidence, the court acted with exactly the sort of caution that Congress endorsed in NEPA. Finally, it bears mention that the District Court’s ex perience with the case may have given it grounds for skepticism about the representations made by APHIS and petitioners. Sometimes “one judicial actor is better posi tioned than another to decide the issue in question.” (195). A “district court may have insights not conveyed by the record.” 47 U.S. 552, 50 (19). In this case, the agency had attempted to deregulate RRA without an EIS in spite of ample evidence of potential environ mental harms. And when the court made clear that the agency had violated NEPA, the agency responded by seeking to “ ‘streamline’ ” the process, ante, at 1, submit ting a deregulation proposal with Monsanto that suffered from some of the same legal and empirical holes as its initial plan to deregulate. Against that background, the court may have felt it especially prudent to wait for an EIS before concluding that APHIS could manage RRA’s threat to the environment. * * * The District Court in this case was put in an “unenvi able position.” In front of it was strong evidence that RRA poses a serious threat to the environment and to 20 MONSANTO CO. v. GEERTSON SEED FARMS STEVENS, J., dissenting American business, and that limits on RRA deregulation might not be followed or enforced—and that even if they were, the newly engineered gene might nevertheless spread to other crops. Confronted with those disconcert ing submissions, with APHIS’s unlawful deregulation decision, with a group of farmers who had staked their livelihoods on APHIS’s decision, and with a federal statute that prizes informed decisionmaking on matters that seriously affect the environment, the court did the best it could. In my view, the District Court was well within its discretion to order the remedy that the Court now re verses. Accordingly, I respectfully dissent

Justice Stevens

majority

Altria Group, Inc. v. Good

2008-12-15

https://www.courtlistener.com/opinion/145925/altria-group-inc-v-good/

https://www.courtlistener.com/api/rest/v3/clusters/145925/

2008-006

Respondents, who have for over 15 years smoked “light” cigarettes manufactured by petitioners, Philip Morris USA, Inc., and its parent company, Altria Group, Inc., claim that petitioners violated the Maine Unfair Trade Practices Act (MUTPA). Specifically, they allege that petitioners’ advertising fraudulently conveyed the mes sage that their “light” cigarettes deliver less tar and nico tine to consumers than regular brands despite petitioners’ knowledge that the message was untrue. Petitioners deny the charge, asserting that their advertisements were factually accurate. The merits of the dispute are not before us because the District Court entered summary judgment in favor of petitioners on the ground that re spondents’ state-law claim is pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended (Labeling Act). The Court of Appeals reversed that judg ment, and we granted certiorari to review its holding that the Labeling Act neither expressly nor impliedly pre empts respondents’ fraud claim. We affirm. 2 ALTRIA GROUP, INC. v. GOOD Opinion of the Court I Respondents are Maine residents and longtime smokers of Marlboro Lights and Cambridge Lights cigarettes, which are manufactured by petitioners. Invoking the diversity jurisdiction of the Federal District Court, re spondents filed a complaint alleging that petitioners delib erately deceived them about the true and harmful nature of “light” cigarettes in violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, §207 (Supp. 2008).1 Respondents claim that petitioners fraudulently marketed their cigarettes as being “light” and containing “ ‘[l]owered [t]ar and [n]icotine’ ” to convey to consumers that they deliver less tar and nicotine and are therefore less harmful than regu lar cigarettes. App. 28a–29a. Respondents acknowledge that testing pursuant to the Cambridge Filter Method2 indicates that tar and nicotine yields of Marlboro Lights and Cambridge Lights are lower than those of regular cigarettes. Id., at 30a. Respondents allege, however, that petitioners have known at all rele vant times that human smokers unconsciously engage in compensatory behaviors not registered by Cambridge Filter Method testing that negate the effect of the tar- and —————— 1 The MUTPA provides, as relevant, that “[u]nfair methods of compe tition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” §207. In construing that section, courts are to “be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.” §207(1). 2 The Cambridge Filter Method weighs and measures the tar and nicotine collected by a smoking machine that takes 35 milliliter puffs of two seconds’ duration every 60 seconds until the cigarette is smoked to a specified butt length. App. 294a, 668a. As discussed below, the Federal Trade Commission (FTC or Commission) signaled in 1966 that the Cambridge Filter Method was an acceptable means of measuring the tar and nicotine content of cigarettes, but it never required manu facturers to publish test results in their advertisements. Cite as: 555 U. S. ____ (2008) 3 Opinion of the Court nicotine-reducing features of “light” cigarettes. Id., at 30a–31a. By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time, smokers of “light” cigarettes unknowingly inhale as much tar and nicotine as do smokers of regular cigarettes. Ibid. “Light” cigarettes are in fact more harmful because the increased ventilation that results from their unique design features produces smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes. Id., at 31a–32a. Respondents claim that petitioners vio lated the MUTPA by fraudulently concealing that infor mation and by affirmatively representing, through the use of “light” and “lowered tar and nicotine” descriptors, that their cigarettes would pose fewer health risks. Id., at 32a, 33a. Petitioners moved for summary judgment on the ground that the Labeling Act, 15 U.S. C. §1334(b), expressly pre empts respondents’ state-law cause of action. Relying on our decisions in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), the District Court concluded that respondents’ MUTPA claim is pre-empted. The court recast respon dents’ claim as a failure-to-warn or warning neutralization claim of the kind pre-empted in Cipollone: The claim charges petitioners with “produc[ing] a product it knew contained hidden risks . . . not apparent or known to the consumer”—a claim that “runs to what [petitioners] actu ally said about Lights and what [respondents] claim they should have said.” 436 F. Supp. 2d 132, 151 (Me. 2006). And the difference between what petitioners said and what respondents would have them say is “ ‘intertwined with the concern about cigarette smoking and health.’ ” Id., at 153 (quoting Reilly, 533 U.S., at 548). The District Court thus concluded that respondents’ claim rests on a state-law requirement based on smoking and health of 4 ALTRIA GROUP, INC. v. GOOD Opinion of the Court precisely the kind that §1334(b) pre-empts, and it granted summary judgment for petitioners. Respondents appealed, and the Court of Appeals re versed. The Court of Appeals first rejected the District Court’s characterization of respondents’ claim as a warn ing neutralization claim akin to the pre-empted claim in Cipollone. 501 F.3d 29, 37, 40 (CA1 2007). Instead, the court concluded that respondents’ claim is in substance a fraud claim that alleges that petitioners falsely repre sented their cigarettes as “light” or having “lowered tar and nicotine” even though they deliver to smokers the same quantities of those components as do regular ciga rettes. Id., at 36. “The fact that these alleged misrepre sentations were unaccompanied by additional statements in the nature of a warning does not transform the claimed fraud into failure to warn” or warning neutralization. Id., at 42–43. Finding respondents’ claim indistinguishable from the non-pre-empted fraud claim at issue in Cipollone, the Court of Appeals held that it is not expressly pre empted. The court also rejected petitioners’ argument that respondents’ claim is impliedly pre-empted because their success on that claim would stand as an obstacle to the purported policy of the FTC allowing the use of de scriptive terms that convey Cambridge Filter Method test results. Accordingly, it reversed the judgment of the District Court. In concluding that respondents’ claim is not expressly pre-empted, the Court of Appeals considered and rejected the Fifth Circuit’s reasoning in a similar case. 501 F.3d, at 45. Unlike the court below, the Fifth Circuit likened the plaintiffs’ challenge to the use of “light” descriptors to Cipollone’s warning neutralization claim and thus found it expressly pre-empted. Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383, 392–393 (2007). We granted the petition for certiorari to resolve this apparent conflict. 552 U. S. ___ (2008). Cite as: 555 U. S. ____ (2008) 5 Opinion of the Court II Article VI, cl. 2, of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Mary land v. Louisiana, 451 U.S. 725, 746 (1981). Our inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). If a federal law contains an express pre emption clause, it does not immediately end the inquiry because the question of the substance and scope of Con gress’ displacement of state law still remains. Pre emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). When addressing questions of express or implied pre emption, we begin our analysis “with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). That assump tion applies with particular force when Congress has legislated in a field traditionally occupied by the States. Lohr, 518 U.S., at 485; see also Reilly, 533 U.S., at 541– 542 (“Because ‘federal law is said to bar state action in [a] 6 ALTRIA GROUP, INC. v. GOOD Opinion of the Court fiel[d] of traditional state regulation,’ namely, advertising, we ‘wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress’ ” (citation omitted)). Thus, when the text of a pre-emption clause is susceptible of more than one plausi ble reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). Congress enacted the Labeling Act in 19653 in response to the Surgeon General’s determination that cigarette smoking is harmful to health. The Act required that every package of cigarettes sold in the United States contain a conspicuous warning, and it pre-empted state-law positive enactments that added to the federally prescribed warn ing. 79 Stat. 283. Congress amended the Labeling Act a few years later by enacting the Public Health Cigarette Smoking Act of 1969.4 The amendments strengthened the language of the prescribed warning, 84 Stat. 88, and pro hibited cigarette advertising in “any medium of electronic communication subject to [FCC] jurisdiction,” id., at 89. They also broadened the Labeling Act’s pre-emption provi sion. See Cipollone, 505 U.S., at 520 (plurality opinion) (discussing the difference in scope of the pre-emption clauses of the 1965 and 1969 Acts). The Labeling Act has since been amended further to require cigarette manufac turers to include four more explicit warnings in their packaging and advertisements on a rotating basis.5 The stated purpose of the Labeling Act is “to establish a comprehensive Federal program to deal —————— 3 79 Stat. 282. 4 Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Con gress directed that it be cited as a “1969 Act.” 5 Comprehensive Smoking Education Act, Pub. L. 98–474, §4(a), 98 Stat. 2201, 15 U.S. C. §1333(a). Cite as: 555 U. S. ____ (2008) 7 Opinion of the Court with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby— “(1) the public may be adequately informed that cigarette smoking may be hazardous to health by in clusion of a warning to that effect on each package of cigarettes; and “(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, non uniform, and confusing cigarette labeling and adver tising regulations with respect to any relationship be tween smoking and health.” 79 Stat. 282, 15 U.S. C. §1331. The requirement that cigarette manufacturers include in their packaging and advertising the precise warnings mandated by Congress furthers the Act’s first purpose. And the Act’s pre-emption provisions promote its second purpose. As amended, the Labeling Act contains two express pre emption provisions. Section 5(a) protects cigarette manu facturers from inconsistent state labeling laws by prohibit ing the requirement of additional statements relating to smoking and health on cigarette packages. 15 U.S. C. §1334(a). Section 5(b), which is at issue in this case, provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” §1334(b). Together, the labeling requirement and pre-emption provisions express Congress’ determination that the pre scribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health consequences of smoking. Because Congress has decided 8 ALTRIA GROUP, INC. v. GOOD Opinion of the Court that no additional warning statement is needed to attain that goal, States may not impede commerce in cigarettes by enforcing rules that are based on an assumption that the federal warnings are inadequate. Although both of the Act’s purposes are furthered by prohibiting States from supplementing the federally prescribed warning, neither would be served by limiting the States’ authority to pro hibit deceptive statements in cigarette advertising. Peti tioners acknowledge that “Congress had no intention of insulating tobacco companies from liability for inaccurate statements about the relationship between smoking and health.” Brief for Petitioners 28. But they maintain that Congress could not have intended to permit the enforce ment of state fraud rules because doing so would defeat the Labeling Act’s purpose of preventing nonuniform state warning requirements. 15 U.S. C. §1331.6 As we ob —————— 6 Petitioners also urge us to find support for their claim that Congress gave the FTC exclusive authority to police deceptive health-related claims in cigarette advertising in what they refer to as the Labeling Act’s “saving clause.” The clause provides that, apart from the warning requirement, nothing in the Act “shall be construed to limit, restrict, expand, or otherwise affect the authority of the Federal Trade Commis sion with respect to unfair or deceptive acts or practices in the advertis ing of cigarettes.” §1336. A plurality of this Court has previously read this clause to “indicat[e] that Congress intended the phrase ‘relating to smoking and health’ . . . to be construed narrowly, so as not to pro scribe the regulation of deceptive advertising.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 528–529 (1992). Nothing in the clause suggests that Congress meant to proscribe the States’ historic regula tion of deceptive advertising practices. The FTC has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity. See 1 S. Kanwit, Federal Trade Commission §§1:1, 1:2 (2004 ed. and Supp. 2008). Moreover, when the Labeling Act was amended in 1969 it was not even clear that the FTC possessed rulemaking authority, see 84 Stat. 89, making it highly unlikely that Congress would have intended to assign exclusively to the FTC the substantial task of overseeing deceptive practices in cigarette advertisements. Cite as: 555 U. S. ____ (2008) 9 Opinion of the Court served in Cipollone, however, fraud claims “rely only on a single, uniform standard: falsity.” 505 U.S., at 529 (plu rality opinion). Although it is clear that fidelity to the Act’s purposes does not demand the pre-emption of state fraud rules, the principal question that we must decide is whether the text of §1334(b) nevertheless requires that result. III We have construed the operative phrases of §1334(b) in two prior cases: Cipollone, 505 U.S. 504, and Reilly, 533 U.S. 525. On both occasions we recognized that the phrase “based on smoking and health” modifies the state law rule at issue rather than a particular application of that rule. In Cipollone, the plurality, which consisted of Chief Justice Rehnquist and Justices White, O’Connor, and STEVENS, read the pre-emption provision in the 1969 amendments to the Labeling Act to pre-empt common-law rules as well as positive enactments. Unlike Justices Blackmun, KENNEDY, and SOUTER, the plurality con cluded that the provision does not preclude all common law claims that have some relationship to smoking and health. 505 U.S., at 521–523. To determine whether a particular common-law claim is pre-empted, the plurality inquired “whether the legal duty that is the predicate of the common-law damages action constitutes a ‘require ment or prohibition based on smoking and health . . . with respect to . . . advertising or promotion,’ giving that clause a fair but narrow reading.” Id., at 524. Applying this standard, the plurality held that the plaintiff’s claim that cigarette manufacturers had fraudu lently misrepresented and concealed a material fact was not pre-empted. That claim alleged a violation of the manufacturers’ duty not to deceive—a duty that is not “based on” smoking and health. Id., at 528–529. Respon 10 ALTRIA GROUP, INC. v. GOOD Opinion of the Court dents in this case also allege a violation of the duty not to deceive as that duty is codified in the MUTPA. The duty codified in that state statute, like the duty imposed by the state common-law rule at issue in Cipollone, has nothing to do with smoking and health.7 Petitioners endeavor to distance themselves from that holding by arguing that respondents’ claim is more analo gous to the “warning neutralization” claim found to be pre empted in Cipollone. Although the plurality understood the plaintiff to have presented that claim as a “theory of fraudulent misrepresentation,” id., at 528, the gravamen of the claim was the defendants’ failure to warn, as it was “predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking,” id., at 527. Thus understood, the Cipollone plurality’s analysis of the warning neutralization claim has no appli cation in this case.8 —————— 7 In his dissent, JUSTICE THOMAS criticizes our reliance on the plural ity opinion in Cipollone, post, at 6–8, 14–19, 22, and advocates adopting the analysis set forth by JUSTICE SCALIA in his opinion concurring in the judgment in part and dissenting in part in that case, post, at 3–6, 19– 21. But JUSTICE SCALIA’s approach was rejected by seven Members of the Court, and in the almost 17 years since Cipollone was decided Congress has done nothing to indicate its approval of that approach. Moreover, JUSTICE THOMAS fails to explain why Congress would have intended the result that JUSTICE SCALIA’s approach would produce— namely, permitting cigarette manufacturers to engage in fraudulent advertising. As a majority of the Court concluded in Cipollone, nothing in the Labeling Act’s language or purpose supports that result. 8 The Cipollone plurality further stated that the warning neutraliza tion claim was “merely the converse of a state-law requirement that warnings be included in advertising and promotional materials,” 505 U.S., at 527, evincing the plurality’s recognition that warning neutrali zation and failure-to-warn claims are two sides of the same coin. JUSTICE THOMAS’ criticism of the plurality’s treatment of the failure-to warn claim, post, at 16, is beside the point, as no such claim is at issue in this litigation. Cite as: 555 U. S. ____ (2008) 11 Opinion of the Court Petitioners nonetheless contend that respondents’ claim is like the pre-empted warning neutralization claim be cause it is based on statements that “might create a false impression” rather than statements that are “inherently false.” Brief for Petitioners 39. But the extent of the falsehood alleged does not alter the nature of the claim. Nothing in the Labeling Act’s text or purpose or in the plurality opinion in Cipollone suggests that whether a claim is pre-empted turns in any way on the distinction between misleading and inherently false statements. Petitioners’ misunderstanding is the same one that led the Court of Appeals for the Fifth Circuit, when confronted with a “light” descriptors claim, to reach a result at odds with the Court of Appeals’ decision in this case. See Brown, 479 F.3d, at 391–393. Certainly, the extent of the falsehood alleged may bear on whether a plaintiff can prove her fraud claim, but the merits of respondents’ claim are not before us. Once that erroneous distinction is set aside, it is clear that our holding in Cipollone that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case. As was true of the claim in Cipollone, respondents’ claim that the deceptive statements “light” and “lowered tar and nicotine” induced them to purchase petitioners’ product alleges a breach of the duty not to deceive.9 To be sure, the presence of the federally mandated warnings may bear on the materiality of petitioners’ allegedly fraudulent statements, “but that possibility does not change [respondents’] case from one —————— 9 As the Court of Appeals observed, respondents’ allegations regard ing petitioners’ use of the statements “light” and “lowered tar and nicotine” could also support a warning neutralization claim. But respondents did not bring such a claim, and the fact that they could have does not, as petitioners suggest, elevate form over substance. There is nothing new in the recognition that the same conduct might violate multiple proscriptions. 12 ALTRIA GROUP, INC. v. GOOD Opinion of the Court about the statements into one about the warnings.” 501 F.3d, at 44.10 Our decision in Reilly is consistent with Cipollone’s analysis. Reilly involved regulations promulgated by the Massachusetts attorney general “ ‘in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage customers.’ ” 533 U.S., at 533 (quoting 940 Code Mass. Regs. §21.01 (2000)). The regulations did not pertain to the content of any advertising; rather, they placed a variety of restrictions on certain cigarette sales and the location of outdoor and point-of-sale cigarette advertising. The attorney general promulgated those restrictions pursuant to his statutory authority to prevent unfair or deceptive trade practices. Mass. Gen. Laws, ch. 93A, §2 (West 1996). But although the attorney general’s authority derived from a general deceptive practices statute like the one at issue in this case, the challenged regulations targeted advertising that tended to promote tobacco use by children instead of pro hibiting false or misleading statements. Thus, whereas the “prohibition” in Cipollone was the common-law fraud rule, the “prohibitions” in Reilly were the targeted regula —————— 10 JUSTICE THOMAS contends that respondents’ fraud claim must be pre-empted because “[a] judgment in [their] favor will . . . result in a ‘requirement’ that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.” Post, at 3. He further asserts that “respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the ‘light’ or ‘low-tar’ descriptors.” Post, at 20. But this mischaracterizes the relief respondents seek. If respondents prevail at trial, petitioners will be prohibited from selling as “light” or “low tar” only those cigarettes that are not actually light and do not actually deliver less tar and nicotine. Barring intervening federal regulation, petitioners would remain free to make nonfraudulent use of the “light” and “low-tar” descriptors. Cite as: 555 U. S. ____ (2008) 13 Opinion of the Court tions. Accordingly, our holding in Reilly that the regula tions were pre-empted provides no support for an argu ment that a general prohibition of deceptive practices is “based on” the harm caused by the specific kind of decep tion to which the prohibition is applied in a given case. It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health. And although respondents have expressly repudiated any claim for damages for personal injuries, see App. 26a, their actual injuries likely encompass harms to health as well as the monetary injuries they allege. These arguments are unavailing, however, because the text of §1334(b) does not refer to harms related to smoking and health. Rather, it pre-empts only requirements and prohibitions—i.e., rules—that are based on smoking and health. The MUTPA says nothing about either “smoking” or “health.” It is a general rule that creates a duty not to deceive and is therefore unlike the regulations at issue in Reilly.11 Petitioners argue in the alternative that we should reject the express pre-emption framework established by the Cipollone plurality and relied on by the Court in Reilly. In so doing, they invoke the reasons set forth in the separate opinions of Justice Blackmun (who especially criticized the plurality’s holding that the failure-to-warn claim was pre-empted) and JUSTICE SCALIA (who argued that the fraud claim also should be pre-empted). While we again acknowledge that our analysis of these claims may lack “theoretical elegance,” we remain persuaded that it —————— 11 In implementing the MUTPA, neither the state legislature nor the state attorney general has enacted a set of special rules or guidelines targeted at cigarette advertising. As we noted in Cipollone, it was the threatened enactment of new state warning requirements rather than the enforcement of pre-existing general prohibitions against deceptive practices that prompted congressional action in 1969. 505 U.S., at 515, and n. 11. 14 ALTRIA GROUP, INC. v. GOOD Opinion of the Court represents “a fair understanding of congressional pur pose.” Cipollone, 505 U.S., at 529–530, n. 27 (plurality opinion). Petitioners also contend that the plurality opinion is inconsistent with our decisions in American Airlines, Inc. v. Wolens, 513 U.S. 219 (1995), and Riegel v. Medtronic, Inc., 552 U. S. ___ (2008). Both cases, however, are inap posite—the first because it involved a pre-emption provi sion much broader than the Labeling Act’s, and the second because it involved precisely the type of state rule that Congress had intended to pre-empt. At issue in Wolens was the pre-emptive effect of the Airline Deregulation Act of 1978 (ADA), 49 U.S. C. App. §1305(a)(1) (1988 ed.), which prohibits States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” The plaintiffs in that case sought to bring a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815, §505 (West 1992). Our conclusion that the state-law claim was pre-empted turned on the unusual breadth of the ADA’s pre-emption provision. We had previously held that the meaning of the key phrase in the ADA’s pre emption provision, “ ‘relating to rates, routes, or services,’ ” is a broad one. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383–384 (1992) (emphasis added). Relying on precedents construing the pre-emptive effect of the same phrase in the Employee Retirement Income Security Act of 1974, 29 U.S. C. §1144(a), we concluded that the phrase “relating to” indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the airline industry. 504 U.S., at 383–384.12 Unquestionably, —————— 12 Petitioners also point to Morales as evidence that our decision in Cipollone was wrong. But Morales predated Cipollone, and it is in any event even more easily distinguishable from this case than American Airlines, Inc. v. Wolens, 513 U. S 219 (1995). At issue in Morales were guidelines regarding the form and substance of airline fare advertising Cite as: 555 U. S. ____ (2008) 15 Opinion of the Court the phrase “relating to” has a broader scope than the Labeling Act’s reference to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a connection with,” id., at 384, “based on” describes a more direct relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S. ___, ___ (2007) (slip op., at 13) (“In common talk, the phrase ‘based on’ indicates a but-for causal relation ship and thus a necessary logical condition”). Petitioners’ reliance on Riegel is similarly misplaced. The plaintiffs in Riegel sought to bring common-law de sign, manufacturing, and labeling defect claims against the manufacturer of a faulty catheter. The case presented the question whether those claims were expressly pre empted by the Medical Device Amendments of 1976 (MDA), 21 U.S. C. §360c et seq. The MDA’s pre-emption clause provides that no State “ ‘may establish or continue in effect with respect to a device . . . any requirement’ relating to safety or effectiveness that is different from, or in addition to, federal requirements.” Riegel, 552 U. S., at ___ (slip op., at 14) (quoting 21 U.S. C. §360k(a); emphasis deleted). The catheter at issue in Riegel had received premarket approval from the Food and Drug Administration (FDA). We concluded that premarket approval imposes “require ment[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket ap proval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its ap proved application. The plaintiffs’ products liability —————— implemented by the National Association of Attorneys General to give content to state deceptive practices rules. 504 U.S., at 379. Like the regulations at issue in Reilly, the guidelines were industry-specific directives that targeted the subject matter made off-limits by the ADA’s express pre-emption provisions. See also Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. ___ (2008) (holding that targeted ground carrier regulations were pre-empted by a statute modeled on the ADA). 16 ALTRIA GROUP, INC. v. GOOD Opinion of the Court claims fell within the core of the MDA’s pre-emption pro vision because they sought to impose different require ments on precisely those aspects of the device that the FDA had approved. Unlike the Cipollone plaintiff’s fraud claim, which fell outside of the Labeling Act’s pre-emptive reach because it did not seek to impose a prohibition “based on smoking and health,” the Riegel plaintiffs’ com mon-law products liability claims unquestionably sought to enforce “requirement[s] relating to safety or effective ness” under the MDA. That the “relating to” language of the MDA’s pre-emption provision is, like the ADA’s, much broader than the operative language of the Labeling Act provides an additional basis for distinguishing Riegel. Thus, contrary to petitioners’ suggestion, Riegel is entirely consistent with our holding in Cipollone. In sum, we conclude now, as the plurality did in Cipol lone, that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” 505 U.S., at 529. IV As an alternative to their express pre-emption argu ment, petitioners contend that respondents’ claim is impli edly pre-empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades pro moted the development and consumption of low tar ciga rettes and has encouraged consumers to rely on represen tations of tar and nicotine content based on Cambridge Filter Method testing in choosing among cigarette brands. Even if such a regulatory policy could provide a basis for obstacle pre-emption, petitioners’ description of the FTC’s actions in this regard are inaccurate. The Government itself disavows any policy authorizing the use of “light” and “low tar” descriptors. Brief for United States as Cite as: 555 U. S. ____ (2008) 17 Opinion of the Court Amicus Curiae 16–33. In 1966, following the publication of the Surgeon Gen eral’s report on smoking and health, the FTC issued an industry guidance stating its view that “a factual state ment of the tar and nicotine content (expressed in milli grams) of the mainstream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would not violate the FTC Act. App. 478a. The Commission made clear, however, that the guidance applied only to factual assertions of tar and nicotine yields and did not invite “collateral representations . . . made, expressly or by im plication, as to reduction or elimination of health haz ards.” Id., at 479a. A year later, the FTC reiterated its position in a letter to the National Association of Broad casters. The letter explained that, as a “general rule,” the Commission would not challenge statements of tar and nicotine content when “they are shown to be accurate and fully substantiated by tests conducted in accordance with the [Cambridge Filter Method].” Id., at 368a. In 1970, the FTC considered providing further guidance, proposing a rule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge Filter Method testing. 35 Fed. Reg. 12671. The leading ciga rette manufacturers responded by submitting a voluntary agreement under which they would disclose tar and nico tine content in their advertising, App. 899a–900a, and the FTC suspended its rulemaking, 36 Fed. Reg. 784 (1971). Based on these events, petitioners assert that “the FTC has required tobacco companies to disclose tar and nico tine yields in cigarette advertising using a government mandated testing methodology and has authorized them to use descriptors as shorthand references to those nu merical test results.” Brief for Petitioners 2 (emphasis in original). As the foregoing history shows, however, the FTC has in fact never required that cigarette manufactur ers disclose tar and nicotine yields, nor has it condoned 18 ALTRIA GROUP, INC. v. GOOD Opinion of the Court representations of those yields through the use of “light” or “low tar” descriptors. Subsequent Commission actions further undermine petitioners’ claim. After the tobacco companies agreed to report tar and nicotine yields as measured by the Cam bridge Filter Method, the FTC continued to police ciga rette companies’ misleading use of test results. In 1983, the FTC responded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge Filter Method testing were deceptive because the cigarettes in fact delivered disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Method ratings. 48 Fed. Reg. 15954. And in 1995, the FTC found that a manufacturer’s representation “that consumers will get less tar by smoking ten packs of Carlton brand ciga rettes than by smoking a single pack of the other brands” was deceptive even though it was based on the results of Cambridge Filter Method testing. In re American Tobacco Co., 119 F. T. C. 3, 4. The FTC’s conclusion was based on its recognition that, “[i]n truth and in fact, consumers will not necessarily get less tar” due to “such behavior as compensatory smoking.” Ibid.13 —————— 13 In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as “low in tar” even though they had a higher-than-average tar rating. See In re American Brands, Inc., 79 F. T. C. 255 (1971). The Commis sion and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes’ tar and nicotine content as measured by the Cambridge Filter Method. Id., at 258. Petitioners offer this consent order as evidence that the FTC authorized the use of “light” and “low tar” descriptors as long as they accurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus Curiae 26. And a consent order is in any event only binding on the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respon dents’ claim is impliedly pre-empted. Cite as: 555 U. S. ____ (2008) 19 Opinion of the Court This history shows that, contrary to petitioners’ sugges tion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cam bridge Filter Method test results. The FTC’s failure to require petitioners to correct their allegedly misleading use of “light” descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval. Cf. Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) (holding that the Coast Guard’s deci sion not to regulate propeller guards did not impliedly pre empt petitioner’s tort claims).14 More telling are the FTC’s recent statements regarding the use of “light” and “low tar” descriptors. In 1997, the Commission observed that “[t]here are no official defini tions for” the terms “light” and “low tar,” and it sought comments on whether “there [is] a need for official guid ance with respect to the terms” and whether “the descrip tors convey implied health claims.” 62 Fed. Reg. 48163. In November 2008, following public notice and comment, the Commission rescinded its 1966 guidance concerning the Cambridge Filter Method. 73 Fed. Reg. 74500. The rescission is a response to “a consensus among the public health and scientific communities that the Cambridge Filter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are not likely to help consumers make informed decisions.” Id., at 74503. The Commission’s notice of its proposal to rescind —————— 14 It seems particularly inappropriate to read a policy of authorization into the FTC’s inaction when that inaction is in part the result of petitioners’ failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of “light” cigarettes actually inhale. See id., at 8–11. 20 ALTRIA GROUP, INC. v. GOOD Opinion of the Court the guidance also reiterated the original limits of that guidance, noting that it “only addresse[d] simple factual statements of tar and nicotine yields. It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields.” Id., at 40351. In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC’s inaction with regard to “light” descriptors even arguably justifies the pre-emption of state deceptive practices rules like the MUTPA. V We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provi sion nor the FTC’s actions in this field prevent a jury from considering that claim. Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 555 U. S. ____ (2008) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 07–562 _________________ ALTRIA GROUP, INC., ET AL., PETITIONERS v. STEPHANIE GOOD ET AL.

Respondents, who have for over 15 years smoked “light” cigarettes manufactured by petitioners, Philip Morris USA, Inc., and its parent company, Altria Group, Inc., claim that petitioners violated the Maine Unfair Trade Practices Act (MUTPA). Specifically, they allege that petitioners’ advertising fraudulently conveyed the mes sage that their “light” cigarettes deliver less tar and nico tine to consumers than regular brands despite petitioners’ knowledge that the message was untrue. Petitioners deny the charge, asserting that their advertisements were factually accurate. The merits of the dispute are not before us because the District Court entered summary judgment in favor of petitioners on the ground that re spondents’ state-law claim is pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended (Labeling Act). The Court of Appeals reversed that judg ment, and we granted certiorari to review its holding that the Labeling Act neither expressly nor impliedly pre empts respondents’ fraud claim. We affirm. 2 ALTRIA GROUP, INC. v. GOOD Opinion of the Court I Respondents are Maine residents and longtime smokers of Marlboro Lights and Cambridge Lights cigarettes, which are manufactured by petitioners. Invoking the diversity jurisdiction of the Federal District Court, re spondents filed a complaint alleging that petitioners delib erately deceived them about the true and harmful nature of “light” cigarettes in violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, (Supp. 2008).1 Respondents claim that petitioners fraudulently marketed their cigarettes as being “light” and containing “ ‘[l]owered [t]ar and [n]icotine’ ” to convey to consumers that they deliver less tar and nicotine and are therefore less harmful than regu lar cigarettes. App. 28a–29a. Respondents acknowledge that testing pursuant to the Cambridge Filter Method2 indicates that tar and nicotine yields of Marlboro Lights and Cambridge Lights are lower than those of regular cigarettes. at 30a. Respondents allege, however, that petitioners have known at all rele vant times that human smokers unconsciously engage in compensatory behaviors not registered by Cambridge Filter Method testing that negate the effect of the tar- and —————— 1 The MUTPA provides, as relevant, that “[u]nfair methods of compe tition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” In construing that section, courts are to “be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.” (1). 2 The Cambridge Filter Method weighs and measures the tar and nicotine collected by a smoking machine that takes 35 milliliter puffs of two seconds’ duration every 60 seconds until the cigarette is smoked to a specified butt length. App. 294a, 668a. As discussed below, the Federal Trade Commission (FTC or Commission) signaled in 1966 that the Cambridge Filter Method was an acceptable means of measuring the tar and nicotine content of cigarettes, but it never required manu facturers to publish test results in their advertisements. Cite as: 555 U. S. (2008) 3 Opinion of the Court nicotine-reducing features of “light” cigarettes. at 30a–31a. By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time, smokers of “light” cigarettes unknowingly inhale as much tar and nicotine as do smokers of regular cigarettes. “Light” cigarettes are in fact more harmful because the increased ventilation that results from their unique design features produces smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes. at 31a–32a. Respondents claim that petitioners vio lated the MUTPA by fraudulently concealing that infor mation and by affirmatively representing, through the use of “light” and “lowered tar and nicotine” descriptors, that their cigarettes would pose fewer health risks. at 32a, 33a. Petitioners moved for summary judgment on the ground that the Labeling Act, 15 U.S. C. expressly pre empts respondents’ state-law cause of action. Relying on our decisions in v. Liggett Group, Inc., 505 U.S. 504 and Lorillard Tobacco Co. v. 533 U.S. 525 (2001), the District Court concluded that respondents’ MUTPA claim is pre-empted. The court recast respon dents’ claim as a failure-to-warn or warning neutralization claim of the kind pre-empted in : The claim charges petitioners with “produc[ing] a product it knew contained hidden risks not apparent or known to the consumer”—a claim that “runs to what [petitioners] actu ally said about Lights and what [respondents] claim they should have said.” And the difference between what petitioners said and what respondents would have them say is “ ‘intertwined with the concern about cigarette smoking and ’ ” (quoting ). The District Court thus concluded that respondents’ claim rests on a state-law requirement based on smoking and health of 4 ALTRIA GROUP, INC. v. GOOD Opinion of the Court precisely the kind that pre-empts, and it granted summary judgment for petitioners. Respondents appealed, and the Court of Appeals re versed. The Court of Appeals first rejected the District Court’s characterization of respondents’ claim as a warn ing neutralization claim akin to the pre-empted claim in Instead, the court concluded that respondents’ claim is in substance a fraud claim that alleges that petitioners falsely repre sented their cigarettes as “light” or having “lowered tar and nicotine” even though they deliver to smokers the same quantities of those components as do regular ciga rettes. “The fact that these alleged misrepre sentations were unaccompanied by additional statements in the nature of a warning does not transform the claimed fraud into failure to warn” or warning neutralization. at 42–43. Finding respondents’ claim indistinguishable from the non-pre-empted fraud claim at issue in the Court of Appeals held that it is not expressly pre empted. The court also rejected petitioners’ argument that respondents’ claim is impliedly pre-empted because their success on that claim would stand as an obstacle to the purported policy of the FTC allowing the use of de scriptive terms that convey Cambridge Filter Method test results. Accordingly, it reversed the judgment of the District Court. In concluding that respondents’ claim is not expressly pre-empted, the Court of Appeals considered and rejected the Fifth Circuit’s reasoning in a similar case. 501 F.3d, at 45. Unlike the court below, the Fifth Circuit likened the plaintiffs’ challenge to the use of “light” descriptors to ’s warning neutralization claim and thus found it expressly pre-empted. We granted the petition for certiorari to resolve this apparent conflict. 552 U. S. (2008). Cite as: 555 U. S. (2008) 5 Opinion of the Court II Article VI, cl. 2, of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that conflict with federal law are “without effect.” Mary Our inquiry into the scope of a statute’s pre-emptive effect is guided by the rule that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, ). Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See 525 (1977). If a federal law contains an express pre emption clause, it does not immediately end the inquiry because the question of the substance and scope of Con gress’ displacement of state law still remains. Pre emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick, When addressing questions of express or implied pre emption, we begin our analysis “with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” That assump tion applies with particular force when Congress has legislated in a field traditionally occupied by the States. 518 U.S., at ; see also – 542 (“Because ‘federal law is said to bar state action in [a] 6 ALTRIA GROUP, INC. v. GOOD Opinion of the Court fiel[d] of traditional state regulation,’ namely, advertising, we ‘wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress’ ” (citation omitted)). Thus, when the text of a pre-emption clause is susceptible of more than one plausi ble reading, courts ordinarily “accept the reading that disfavors pre-emption.” Congress enacted the Labeling Act in 19653 in response to the Surgeon General’s determination that cigarette smoking is harmful to The Act required that every package of cigarettes sold in the United States contain a conspicuous warning, and it pre-empted state-law positive enactments that added to the federally prescribed warn ing. Congress amended the Labeling Act a few years later by enacting the Public Health Cigarette Smoking Act of 4 The amendments strengthened the language of the prescribed warning, and pro hibited cigarette advertising in “any medium of electronic communication subject to [FCC] jurisdiction,” They also broadened the Labeling Act’s pre-emption provi sion. See (discussing the difference in scope of the pre-emption clauses of the 1965 and 1969 Acts). The Labeling Act has since been amended further to require cigarette manufac turers to include four more explicit warnings in their packaging and advertisements on a rotating basis.5 The stated purpose of the Labeling Act is “to establish a comprehensive Federal program to deal —————— 3 79 Stat. 282. 4 Pub. L. 91–222, Though actually enacted in 1970, Con gress directed that it be cited as a “1969 Act.” 5 Comprehensive Smoking Education Act, Pub. L. 98–474, 98 Stat. 2201, 15 U.S. C. Cite as: 555 U. S. (2008) 7 Opinion of the Court with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby— “(1) the public may be adequately informed that cigarette smoking may be hazardous to health by in clusion of a warning to that effect on each package of cigarettes; and “(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, non uniform, and confusing cigarette labeling and adver tising regulations with respect to any relationship be tween smoking and ” 15 U.S. C. The requirement that cigarette manufacturers include in their packaging and advertising the precise warnings mandated by Congress furthers the Act’s first purpose. And the Act’s pre-emption provisions promote its second purpose. As amended, the Labeling Act contains two express pre emption provisions. Section 5(a) protects cigarette manu facturers from inconsistent state labeling laws by prohibit ing the requirement of additional statements relating to smoking and health on cigarette packages. 15 U.S. C. Section 5(b), which is at issue in this case, provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” Together, the labeling requirement and pre-emption provisions express Congress’ determination that the pre scribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health consequences of smoking. Because Congress has decided 8 ALTRIA GROUP, INC. v. GOOD Opinion of the Court that no additional warning statement is needed to attain that goal, States may not impede commerce in cigarettes by enforcing rules that are based on an assumption that the federal warnings are inadequate. Although both of the Act’s purposes are furthered by prohibiting States from supplementing the federally prescribed warning, neither would be served by limiting the States’ authority to pro hibit deceptive statements in cigarette advertising. Peti tioners acknowledge that “Congress had no intention of insulating tobacco companies from liability for inaccurate statements about the relationship between smoking and ” Brief for Petitioners 28. But they maintain that Congress could not have intended to permit the enforce ment of state fraud rules because doing so would defeat the Labeling Act’s purpose of preventing nonuniform state warning requirements. 15 U.S. C. 6 As we ob —————— 6 Petitioners also urge us to find support for their claim that Congress gave the FTC exclusive authority to police deceptive health-related claims in cigarette advertising in what they refer to as the Labeling Act’s “saving clause.” The clause provides that, apart from the warning requirement, nothing in the Act “shall be construed to limit, restrict, expand, or otherwise affect the authority of the Federal Trade Commis sion with respect to unfair or deceptive acts or practices in the advertis ing of cigarettes.” A plurality of this Court has previously read this clause to “indicat[e] that Congress intended the phrase ‘relating to smoking and health’ to be construed narrowly, so as not to pro scribe the regulation of deceptive advertising.” v. Liggett Group, Inc., Nothing in the clause suggests that Congress meant to proscribe the States’ historic regula tion of deceptive advertising practices. The FTC has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity. See 1 S. Kanwit, Federal Trade Commission 1:2 (2004 ed. and Supp. 2008). Moreover, when the Labeling Act was amended in 1969 it was not even clear that the FTC possessed rulemaking authority, see making it highly unlikely that Congress would have intended to assign exclusively to the FTC the substantial task of overseeing deceptive practices in cigarette advertisements. Cite as: 555 U. S. (2008) 9 Opinion of the Court served in however, fraud claims “rely only on a single, uniform standard: falsity.” (plu rality opinion). Although it is clear that fidelity to the Act’s purposes does not demand the pre-emption of state fraud rules, the principal question that we must decide is whether the text of nevertheless requires that result. III We have construed the operative phrases of in two prior cases: and 533 U.S. 525. On both occasions we recognized that the phrase “based on smoking and health” modifies the state law rule at issue rather than a particular application of that rule. In the plurality, which consisted of Chief Justice Rehnquist and Justices White, O’Connor, and STEVENS, read the pre-emption provision in the 1969 amendments to the Labeling Act to pre-empt common-law rules as well as positive enactments. Unlike Justices Blackmun, KENNEDY, and SOUTER, the plurality con cluded that the provision does not preclude all common law claims that have some relationship to smoking and –523. To determine whether a particular common-law claim is pre-empted, the plurality inquired “whether the legal duty that is the predicate of the common-law damages action constitutes a ‘require ment or prohibition based on smoking and health with respect to advertising or promotion,’ giving that clause a fair but narrow reading.” Applying this standard, the plurality held that the plaintiff’s claim that cigarette manufacturers had fraudu lently misrepresented and concealed a material fact was not pre-empted. That claim alleged a violation of the manufacturers’ duty not to deceive—a duty that is not “based on” smoking and at Respon 10 ALTRIA GROUP, INC. v. GOOD Opinion of the Court dents in this case also allege a violation of the duty not to deceive as that duty is codified in the MUTPA. The duty codified in that state statute, like the duty imposed by the state common-law rule at issue in has nothing to do with smoking and 7 Petitioners endeavor to distance themselves from that holding by arguing that respondents’ claim is more analo gous to the “warning neutralization” claim found to be pre empted in Although the plurality understood the plaintiff to have presented that claim as a “theory of fraudulent misrepresentation,” the gravamen of the claim was the defendants’ failure to warn, as it was “predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health hazards associated with smoking,” Thus understood, the plurality’s analysis of the warning neutralization claim has no appli cation in this case.8 —————— 7 In his dissent, JUSTICE THOMAS criticizes our reliance on the plural ity opinion in post, at 6–8, 14–19, 22, and advocates adopting the analysis set forth by JUSTICE SCALIA in his opinion concurring in the judgment in part and dissenting in part in that case, post, at 3–6, 19– 21. But JUSTICE SCALIA’s approach was rejected by seven Members of the Court, and in the almost 17 years since was decided Congress has done nothing to indicate its approval of that approach. Moreover, JUSTICE THOMAS fails to explain why Congress would have intended the result that JUSTICE SCALIA’s approach would produce— namely, permitting cigarette manufacturers to engage in fraudulent advertising. As a majority of the Court concluded in nothing in the Labeling Act’s language or purpose supports that result. 8 The plurality further stated that the warning neutraliza tion claim was “merely the converse of a state-law requirement that warnings be included in advertising and promotional materials,” 505 U.S., evincing the plurality’s recognition that warning neutrali zation and failure-to-warn claims are two sides of the same coin. JUSTICE THOMAS’ criticism of the plurality’s treatment of the failure-to warn claim, post, at 16, is beside the point, as no such claim is at issue in this litigation. Cite as: 555 U. S. (2008) 11 Opinion of the Court Petitioners nonetheless contend that respondents’ claim is like the pre-empted warning neutralization claim be cause it is based on statements that “might create a false impression” rather than statements that are “inherently false.” Brief for Petitioners 39. But the extent of the falsehood alleged does not alter the nature of the claim. Nothing in the Labeling Act’s text or purpose or in the plurality opinion in suggests that whether a claim is pre-empted turns in any way on the distinction between misleading and inherently false statements. Petitioners’ misunderstanding is the same one that led the Court of Appeals for the Fifth Circuit, when confronted with a “light” descriptors claim, to reach a result at odds with the Court of Appeals’ decision in this case. See –393. Certainly, the extent of the falsehood alleged may bear on whether a plaintiff can prove her fraud claim, but the merits of respondents’ claim are not before us. Once that erroneous distinction is set aside, it is clear that our holding in that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case. As was true of the claim in respondents’ claim that the deceptive statements “light” and “lowered tar and nicotine” induced them to purchase petitioners’ product alleges a breach of the duty not to deceive.9 To be sure, the presence of the federally mandated warnings may bear on the materiality of petitioners’ allegedly fraudulent statements, “but that possibility does not change [respondents’] case from one —————— 9 As the Court of Appeals observed, respondents’ allegations regard ing petitioners’ use of the statements “light” and “lowered tar and nicotine” could also support a warning neutralization claim. But respondents did not bring such a claim, and the fact that they could have does not, as petitioners suggest, elevate form over substance. There is nothing new in the recognition that the same conduct might violate multiple proscriptions. 12 ALTRIA GROUP, INC. v. GOOD Opinion of the Court about the statements into one about the warnings.” 501 F.3d, at 44.10 Our decision in is consistent with ’s analysis. involved regulations promulgated by the Massachusetts attorney general “ ‘in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age [and] in order to prevent access to such products by underage customers.’ ” 533 U.S., at 533 (quoting 940 Code Mass. Regs. (2000)). The regulations did not pertain to the content of any advertising; rather, they placed a variety of restrictions on certain cigarette sales and the location of outdoor and point-of-sale cigarette advertising. The attorney general promulgated those restrictions pursuant to his statutory authority to prevent unfair or deceptive trade practices. Mass. Gen. Laws, ch. 93A, But although the attorney general’s authority derived from a general deceptive practices statute like the one at issue in this case, the challenged regulations targeted advertising that tended to promote tobacco use by children instead of pro hibiting false or misleading statements. Thus, whereas the “prohibition” in was the common-law fraud rule, the “prohibitions” in were the targeted regula —————— 10 JUSTICE THOMAS contends that respondents’ fraud claim must be pre-empted because “[a] judgment in [their] favor will result in a ‘requirement’ that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.” Post, at 3. He further asserts that “respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the ‘light’ or ‘low-tar’ descriptors.” Post, at 20. But this mischaracterizes the relief respondents seek. If respondents prevail at trial, petitioners will be prohibited from selling as “light” or “low tar” only those cigarettes that are not actually light and do not actually deliver less tar and nicotine. Barring intervening federal regulation, petitioners would remain free to make nonfraudulent use of the “light” and “low-tar” descriptors. Cite as: 555 U. S. (2008) 13 Opinion of the Court tions. Accordingly, our holding in that the regula tions were pre-empted provides no support for an argu ment that a general prohibition of deceptive practices is “based on” the harm caused by the specific kind of decep tion to which the prohibition is applied in a given case. It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and And although respondents have expressly repudiated any claim for damages for personal injuries, see App. 26a, their actual injuries likely encompass harms to health as well as the monetary injuries they allege. These arguments are unavailing, however, because the text of does not refer to harms related to smoking and Rather, it pre-empts only requirements and prohibitions—i.e., rules—that are based on smoking and The MUTPA says nothing about either “smoking” or “” It is a general rule that creates a duty not to deceive and is therefore unlike the regulations at issue in11 Petitioners argue in the alternative that we should reject the express pre-emption framework established by the plurality and relied on by the Court in In so doing, they invoke the reasons set forth in the separate opinions of Justice Blackmun (who especially criticized the plurality’s holding that the failure-to-warn claim was pre-empted) and JUSTICE SCALIA (who argued that the fraud claim also should be pre-empted). While we again acknowledge that our analysis of these claims may lack “theoretical elegance,” we remain persuaded that it —————— 11 In implementing the MUTPA, neither the state legislature nor the state attorney general has enacted a set of special rules or guidelines targeted at cigarette advertising. As we noted in it was the threatened enactment of new state warning requirements rather than the enforcement of pre-existing general prohibitions against deceptive practices that prompted congressional action in and n. 11. 14 ALTRIA GROUP, INC. v. GOOD Opinion of the Court represents “a fair understanding of congressional pur pose.” –530, n. 27 (plurality opinion). Petitioners also contend that the plurality opinion is inconsistent with our decisions in American Airlines, Inc. v. Wolens, and Riegel v. Medtronic, Inc., 552 U. S. (2008). Both cases, however, are inap posite—the first because it involved a pre-emption provi sion much broader than the Labeling Act’s, and the second because it involved precisely the type of state rule that Congress had intended to pre-empt. At issue in Wolens was the pre-emptive effect of the Airline Deregulation Act of 1978 (ADA), 49 U.S. C. App. (1988 ed.), which prohibits States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” The plaintiffs in that case sought to bring a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815, Our conclusion that the state-law claim was pre-empted turned on the unusual breadth of the ADA’s pre-emption provision. We had previously held that the meaning of the key phrase in the ADA’s pre emption provision, “ ‘relating to rates, routes, or services,’ ” is a broad one. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383–384 (emphasis added). Relying on precedents construing the pre-emptive effect of the same phrase in the Employee Retirement Income Security Act of 1974, 29 U.S. C. we concluded that the phrase “relating to” indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the airline –384.12 Unquestionably, —————— 12 Petitioners also point to Morales as evidence that our decision in was wrong. But Morales predated and it is in any event even more easily distinguishable from this case than American Airlines, 513 U. S 219 At issue in Morales were guidelines regarding the form and substance of airline fare advertising Cite as: 555 U. S. (2008) 15 Opinion of the Court the phrase “relating to” has a broader scope than the Labeling Act’s reference to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a connection with,” “based on” describes a more direct relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S. (slip op., at 13) (“In common talk, the phrase ‘based on’ indicates a but-for causal relation ship and thus a necessary logical condition”). Petitioners’ reliance on Riegel is similarly misplaced. The plaintiffs in Riegel sought to bring common-law de sign, manufacturing, and labeling defect claims against the manufacturer of a faulty catheter. The case presented the question whether those claims were expressly pre empted by the Medical Device Amendments of 1976 (MDA), 21 U.S. C. et seq. The MDA’s pre-emption clause provides that no State “ ‘may establish or continue in effect with respect to a device any requirement’ relating to safety or effectiveness that is different from, or in addition to, federal requirements.” Riegel, 552 U. S., at (slip op., at 14) (quoting 21 U.S. C. emphasis deleted). The catheter at issue in Riegel had received premarket approval from the Food and Drug Administration (FDA). We concluded that premarket approval imposes “require ment[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket ap proval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its ap proved application. The plaintiffs’ products liability —————— implemented by the National Association of Attorneys General to give content to state deceptive practices Like the regulations at issue in the guidelines were industry-specific directives that targeted the subject matter made off-limits by the ADA’s express pre-emption provisions. See also Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. (2008) (holding that targeted ground carrier regulations were pre-empted by a statute modeled on the ADA). 16 ALTRIA GROUP, INC. v. GOOD Opinion of the Court claims fell within the core of the MDA’s pre-emption pro vision because they sought to impose different require ments on precisely those aspects of the device that the FDA had approved. Unlike the plaintiff’s fraud claim, which fell outside of the Labeling Act’s pre-emptive reach because it did not seek to impose a prohibition “based on smoking and health,” the Riegel plaintiffs’ com mon-law products liability claims unquestionably sought to enforce “requirement[s] relating to safety or effective ness” under the MDA. That the “relating to” language of the MDA’s pre-emption provision is, like the ADA’s, much broader than the operative language of the Labeling Act provides an additional basis for distinguishing Riegel. Thus, contrary to petitioners’ suggestion, Riegel is entirely consistent with our holding in In sum, we conclude now, as the plurality did in Cipol lone, that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” 505 U.S., at 529. IV As an alternative to their express pre-emption argu ment, petitioners contend that respondents’ claim is impli edly pre-empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades pro moted the development and consumption of low tar ciga rettes and has encouraged consumers to rely on represen tations of tar and nicotine content based on Cambridge Filter Method testing in choosing among cigarette brands. Even if such a regulatory policy could provide a basis for obstacle pre-emption, petitioners’ description of the FTC’s actions in this regard are inaccurate. The Government itself disavows any policy authorizing the use of “light” and “low tar” descriptors. Brief for United States as Cite as: 555 U. S. (2008) 17 Opinion of the Court Amicus Curiae 16–33. In 1966, following the publication of the Surgeon Gen eral’s report on smoking and health, the FTC issued an industry guidance stating its view that “a factual state ment of the tar and nicotine content (expressed in milli grams) of the mainstream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would not violate the FTC Act. App. 478a. The Commission made clear, however, that the guidance applied only to factual assertions of tar and nicotine yields and did not invite “collateral representations made, expressly or by im plication, as to reduction or elimination of health haz ards.” at 479a. A year later, the FTC reiterated its position in a letter to the National Association of Broad casters. The letter explained that, as a “general rule,” the Commission would not challenge statements of tar and nicotine content when “they are shown to be accurate and fully substantiated by tests conducted in accordance with the [Cambridge Filter Method].” 8a. In 1970, the FTC considered providing further guidance, proposing a rule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge Filter Method testing. The leading ciga rette manufacturers responded by submitting a voluntary agreement under which they would disclose tar and nico tine content in their advertising, App. 899a–900a, and the FTC suspended its rulemaking, (1971). Based on these events, petitioners assert that “the FTC has required tobacco companies to disclose tar and nico tine yields in cigarette advertising using a government mandated testing methodology and has authorized them to use descriptors as shorthand references to those nu merical test results.” Brief for Petitioners 2 (emphasis in original). As the foregoing history shows, however, the FTC has in fact never required that cigarette manufactur ers disclose tar and nicotine yields, nor has it condoned 18 ALTRIA GROUP, INC. v. GOOD Opinion of the Court representations of those yields through the use of “light” or “low tar” descriptors. Subsequent Commission actions further undermine petitioners’ claim. After the tobacco companies agreed to report tar and nicotine yields as measured by the Cam bridge Filter Method, the FTC continued to police ciga rette companies’ misleading use of test results. In 1983, the FTC responded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge Filter Method testing were deceptive because the cigarettes in fact delivered disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Method ratings. And in 1995, the FTC found that a manufacturer’s representation “that consumers will get less tar by smoking ten packs of Carlton brand ciga rettes than by smoking a single pack of the other brands” was deceptive even though it was based on the results of Cambridge Filter Method testing. In re American Tobacco Co., 119 F. T. C. 3, 4. The FTC’s conclusion was based on its recognition that, “[i]n truth and in fact, consumers will not necessarily get less tar” due to “such behavior as compensatory smoking.” 13 —————— 13 In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as “low in tar” even though they had a higher-than-average tar rating. See In re American Brands, Inc., 79 F. T. C. 255 (1971). The Commis sion and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes’ tar and nicotine content as measured by the Cambridge Filter Method. at 258. Petitioners offer this consent order as evidence that the FTC authorized the use of “light” and “low tar” descriptors as long as they accurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus Curiae 26. And a consent order is in any event only binding on the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respon dents’ claim is impliedly pre-empted. Cite as: 555 U. S. (2008) 19 Opinion of the Court This history shows that, contrary to petitioners’ sugges tion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cam bridge Filter Method test results. The FTC’s failure to require petitioners to correct their allegedly misleading use of “light” descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval. Cf. (holding that the Coast Guard’s deci sion not to regulate propeller guards did not impliedly pre empt petitioner’s tort claims).14 More telling are the FTC’s recent statements regarding the use of “light” and “low tar” descriptors. In 1997, the Commission observed that “[t]here are no official defini tions for” the terms “light” and “low tar,” and it sought comments on whether “there [is] a need for official guid ance with respect to the terms” and whether “the descrip tors convey implied health claims.” In November 2008, following public notice and comment, the Commission rescinded its 1966 guidance concerning the Cambridge Filter Method. The rescission is a response to “a consensus among the public health and scientific communities that the Cambridge Filter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are not likely to help consumers make informed decisions.” at 74503. The Commission’s notice of its proposal to rescind —————— 14 It seems particularly inappropriate to read a policy of authorization into the FTC’s inaction when that inaction is in part the result of petitioners’ failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of “light” cigarettes actually inhale. See at 8–11. 20 ALTRIA GROUP, INC. v. GOOD Opinion of the Court the guidance also reiterated the original limits of that guidance, noting that it “only addresse[d] simple factual statements of tar and nicotine yields. It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields.” In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC’s inaction with regard to “light” descriptors even arguably justifies the pre-emption of state deceptive practices rules like the MUTPA. V We conclude, as we did in that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provi sion nor the FTC’s actions in this field prevent a jury from considering that claim. Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 555 U. S. (2008) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 07–562 ALTRIA GROUP, INC., ET AL., PETITIONERS v. STEPHANIE GOOD ET AL.

Justice Thomas

dissenting

Altria Group, Inc. v. Good

2008-12-15

https://www.courtlistener.com/opinion/145925/altria-group-inc-v-good/

https://www.courtlistener.com/api/rest/v3/clusters/145925/

2008-006

This appeal requires the Court to revisit its decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). As in that case, the question before us is whether state-law claims alleging that cigarette manufacturers misled the public about the health effects of cigarettes are pre­ empted by the Federal Cigarette Labeling and Advertising Act, as amended in 1969 (Labeling Act or Act). The Label­ ing Act requires that specific health warnings be placed on all cigarette packaging and advertising, 15 U.S. C. §1333, in order to eliminate “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” §1331. To that end, §5(b) of the Labeling Act pre-empts any “re­ quirement or prohibition based on smoking and health . . . imposed under State law with respect to the advertising or promotion of any cigarettes.” §1334(b). Whether §5(b) pre-empts state common-law claims divided the Court in Cipollone. The plurality opinion found some claims expressly pre-empted and others not, depending on whether “the legal duty that is the predicate of the common-law damages action constitutes a require­ ment or prohibition based on smoking and health . . . imposed under State law with respect to . . . advertising or 2 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting promotion.” 505 U.S., at 524 (internal quotation marks omitted; emphasis added). A majority of the Court dis­ agreed with the plurality’s predicate-duty approach. Id., at 543 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); id., at 552–554 (SCALIA, J., concurring in judgment in part and dissenting in part). In particular, JUSTICE SCALIA recognized that the plurality’s interpretation of §5(b) created an unwork­ able test for pre-emption with little or no relationship to the text of the statute. Id., at 544, 555–556. The interven­ ing years have vindicated JUSTICE SCALIA’s critical as­ sessment; the lower courts have consistently expressed frustration at the difficulty in applying the Cipollone plurality’s test. Moreover, this Court’s recent pre-emption decisions have undermined, and in some cases overruled, central aspects of the plurality’s atextual approach to express pre-emption generally, Riegel v. Medtronic, Inc., 552 U. S. ___ (2008), and to §5(b) of the Labeling Act specifically, Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). The majority today ignores these problems and adopts the methodology of the Cipollone plurality as governing law. As a consequence, the majority concludes that state­ law liability for deceiving purchasers about the health effects of smoking light cigarettes is not a “requirement or prohibition based on smoking and health” under the La­ beling Act. The Court’s fidelity to Cipollone is unwise and unnecessary. The Court should instead provide the lower courts with a clear test that advances Congress’ stated goals by interpreting §5(b) to expressly pre-empt any claim that “imposes an obligation . . . because of the effect of smoking upon health.” Cipollone, supra, at 554 (opinion of SCALIA, J.). Respondents’ lawsuit under the Maine Unfair Trade Practices Act (MUTPA), Me. Rev. Stat. Ann., Tit. 5, §207 (Supp. 2008), is expressly pre-empted under §5(b) of the Cite as: 555 U. S. ____ (2008) 3 THOMAS, J., dissenting Labeling Act. The civil action is premised on the allega­ tion that the cigarette manufacturers misled respondents into believing that smoking light cigarettes would be healthier for them than smoking regular cigarettes. A judgment in respondents’ favor will thus result in a “re­ quirement” that petitioners represent the effects of smok­ ing on health in a particular way in their advertising and promotion of light cigarettes. Because liability in this case is thereby premised on the effect of smoking on health, I would hold that respondents’ state-law claims are ex­ pressly pre-empted by §5(b) of the Labeling Act. I respect­ fully dissent. I In Cipollone, a smoker and her spouse brought state common-law claims for fraud, breach of warranty, and failure to warn against cigarette manufacturers for their alleged failure to adequately disclose the health risks of smoking. 505 U.S., at 509. As here, the cigarette manu­ facturer asserted that the claims were pre-empted by §5(b) of the Labeling Act. In deciding the case, the Court could not agree on the meaning of the Labeling Act’s express pre-emption provi­ sion. It produced three separate opinions, none of which reflected the views of a majority of Justices. Relying heavily on a “presumption against the pre-emption of state police power regulations,” a plurality opinion by JUSTICE STEVENS settled on a “narrow reading” of the Labeling Act that tested §5(b)’s pre-emptive effect under a claim-by­ claim approach. Id., at 524. This approach considered each state-law claim and asked whether it is predicated “on a duty ‘based on smoking and health.’ ” Id., at 528; see also id., at 524. If so, the claim is pre-empted. Id., at 524, 528. If, however, the claim is predicated on a “more gen­ eral obligation” under state law, it may proceed. Id., at 528–529. 4 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting Applying a test that it conceded lacked “theoretical elegance,” id., at 530, n. 27, the plurality held that the failure-to-warn claims were pre-empted “to the extent that those claims rel[ied] on omissions or inclusions in . . . advertising or promotions” of cigarettes. Id., at 531. The same was true for one of the fraud claims, which alleged that the cigarette manufacturers had used their advertis­ ing to neutralize the federally required warning labels. Id., at 527–528. The plurality determined that these claims were “predicated on a state-law prohibition against statements . . . that tend to minimize the health hazards associated with smoking.” Id., at 527. Thus, according to the plurality, these state-law claims sought recovery under the theory that the cigarette manufacturer breached a duty based on smoking or health. But the plurality found that the other fraud claim, which alleged misrepresentation or concealment of a material fact, was not pre-empted because it was based on a more general state-law obligation: “the duty not to deceive.” Id., at 528– 529. Justice Blackmun, writing for three Justices, departed from the plurality on the antecedent question whether the Labeling Act pre-empted state common-law damages claims at all. Id., at 535–542 (opinion, joined by KENNEDY and SOUTER, JJ., concurring in part, concurring in judg­ ment in part, and dissenting in part). He concluded that the phrase “ ‘State law’ ” in §5(b) referred only to “positive enactments such as statutes and regulations.” Id., at 535. But Justice Blackmun specifically noted that even if state common-law claims were within the scope of the Labeling Act, he could not join the plurality’s claim-by-claim ap­ proach because he “perceive[d] no principled basis for many of the plurality’s asserted distinctions among the common-law claims.” Id., at 543. Justice Blackmun wrote that Congress could not have “intended to create such a hodgepodge of allowed and disallowed claims when it Cite as: 555 U. S. ____ (2008) 5 THOMAS, J., dissenting amended the pre-emption provision in 1970,” and la­ mented the “difficulty lower courts w[ould] encounter in attempting to implement” the plurality’s test. Id., at 543– 544. JUSTICE SCALIA, writing for two Justices, also faulted the plurality for its claim-by-claim approach. Id., at 544– 556 (opinion, joined by THOMAS, J., concurring in judg­ ment in part and dissenting in part). Although he agreed with the plurality that the phrase “ ‘State law’ ” in §5(b) encompassed state common-law claims as well as state statutes and regulations, id., at 548–549, JUSTICE SCALIA objected to the plurality’s invocation of a presumption against pre-emption to narrowly interpret §5(b), id., at 544, 545–547. Because Congress had expressed its intent to pre-empt state law by enacting §5(b), the Court’s “re­ sponsibility [was] to apply to the text ordinary principles of statutory construction.” Id., at 545.1 By employing its “newly crafted doctrine of narrow construction,” JUSTICE SCALIA wrote, the plurality arrived at a cramped and unnatural construction of §5(b) that failed to give effect to the statutory text. Id., at 544–548. Applying “ordinary principles” of statutory construction, id., at 548, JUSTICE SCALIA determined that the proper test for pre-emption of state-law claims under §5(b) was far less complicated than the plurality’s claim-by-claim approach. As he explained, “[o]nce one is forced to select a consistent methodology for evaluating whether a given legal duty is ‘based on smoking and health,’ it becomes obvious that the methodology must focus not upon the —————— 1 JUSTICE SCALIA also criticized the plurality for announcing a new rule that the enactment of an express pre-emption clause eliminates any consideration of implied pre-emption. He explained that this new rule created mischief because, when combined with the presumption against pre-emption, it placed a heavy burden of exactitude on Con­ gress when it wishes to say anything about pre-emption. See Cipollone, 505 U.S., at 547–548. 6 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting ultimate source of the duty . . . but upon its proximate application.” Id., at 553. This “proximate application” test, therefore, focuses not on the state-law duty invoked by the plaintiff, but on the effect of the suit on the ciga­ rette manufacturer’s conduct—i.e., the “requirement” or “prohibition” that would be imposed under state law. Put simply, if, “whatever the source of the duty, [the claim] imposes an obligation . . . because of the effect of smoking upon health,” it is pre-empted. Id., at 554; see also id., at 555 (“The test for pre-emption in this setting should be one of practical compulsion, i.e., whether the law practi­ cally compels the manufacturers to engage in behavior that Congress has barred the States from prescribing directly”). JUSTICE SCALIA also seconded Justice Black­ mun’s concern that the lower courts would find the plural­ ity’s distinctions between materially identical state-law claims to be incapable of application: “A disposition that raises more questions than it answers does not serve the country well.” Id., at 556. II Sixteen years later, we must confront Cipollone to re­ solve the question presented in this case: whether respon­ dents’ class-action claims for fraudulent marketing under the MUTPA are pre-empted by §5(b) of the Labeling Act. The majority adheres to Cipollone because it “remain[s] persuaded” that the plurality’s construction of the §5(b) was “ ‘fair.’ ” Ante, at 13–14. I disagree. The Court should discard the Cipollone plurality’s ill-conceived predicate­ duty approach and replace it with JUSTICE SCALIA’s far more workable and textually sound “proximate applica­ tion” test. The majority does not assert that the Cipollone plurality opinion is binding precedent, and rightly so. Because the “plurality opinion . . . did not represent the views of a majority of the Court, we are not bound by its reasoning.” Cite as: 555 U. S. ____ (2008) 7 THOMAS, J., dissenting CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 81 (1987) (footnote omitted). At most, Cipollone is a “point of reference for further discussion.” Texas v. Brown, 460 U.S. 730, 737 (1983) (plurality opinion). But even if the plurality opinion had some force beyond its mere persua­ sive value, it nevertheless should be abandoned. It is unworkable; it has been overtaken by more recent deci­ sions of this Court; and it cannot be reconciled with a commonsense reading of the text of §5(b). A As predicted by a majority of the Justices in Cipollone, the plurality opinion’s claim-by-claim approach has proved unworkable in the lower federal courts and state courts. The District Court in this case properly observed that “courts remain divided about what the decision means and how to apply it” and that “Cipollone’s distinctions, though clear in theory, defy clear application.” 436 F. Supp. 2d 132, 142 (Me. 2006). Other courts have expressed similar frustration with the Cipollone framework. See, e.g., Glassner v. R. J. Reynolds Tobacco Co., 223 F.3d 343, 348 (CA6 2000) (“Applying the plurality opinion in Cipollone to the Complaint in the present case is no easy task”); Hud dleston v. R. J. Reynolds Tobacco Co., 66 F. Supp. 2d 1370, 1380 (ND Ga. 1999) (“It would be an understatement to say that it is difficult to apply the plurality opinion in Cipollone to the Amended Complaint in this case. It is an impossibility”); In re Welding Fume Prods. Liability Liti gation, 364 F. Supp. 2d 669, 681, n. 13 (ND Ohio 2005) (“[I]n Cipollone, the Supreme Court . . . delivered a frac­ tured plurality opinion that is not easy to comprehend”); Whiteley v. Philip Morris, Inc., 117 Cal. App. 4th 635, 670, 11 Cal. Rptr. 3d 807, 835–836 (2004) (“[Cipollone is] ‘diffi­ cult’ . . . due to the inherent contradiction at the core of the case”); Mangini v. R. J. Reynolds Tobacco Co., 21 Cal. Rptr. 2d 232, 244 (Cal. App. 1993) (“Cipollone draws no 8 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting bright lines amenable to easy application”), aff’d, 7 Cal. 4th 1057, 875 P.2d 73 (1994). The Court should not retain an interpretative test that has proved incapable of implementation. “[T]he mischie­ vous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.” Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. ___, ___ (2007) (slip op., at 20) (SCALIA, J., concurring in part and concurring in judgment) (“Stare decisis consid­ erations carry little weight when an erroneous ‘governing decisio[n]’ has created an ‘unworkable’ legal regime” (quot­ ing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). We owe far more to the lower courts, which depend on this Court’s guidance, and to litigants, who must conform their actions to the Court’s interpretation of federal law. The Cipollone plurality’s test for pre-emption under §5(b) should be abandoned for this reason alone. B Furthermore, in the years since Cipollone was decided, this Court has altered its doctrinal approach to express pre-emption. The Cipollone plurality justified what it described as the “theoretical [in]elegance” of its construc­ tion of §5(b) by relying on the presumption against pre­ emption, which, it argued, required a narrow, but “fair,” construction of the statute. 505 U.S., at 530, n. 27. See, e.g., id., at 518 (majority opinion) (“This presumption reinforces the appropriateness of a narrow reading of §5”); id., at 523 (plurality opinion) (“[W]e must . . . narrowly construe the precise language of §5(b)”); id., at 524 (§5(b) must be given “a fair but narrow reading”); id., at 529 (“[W]e conclude that the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent state­ ments”). Of course, as JUSTICE SCALIA explained, there Cite as: 555 U. S. ____ (2008) 9 THOMAS, J., dissenting was nothing “fair” about imposing an artificially narrow construction on the Labeling Act’s pre-emption provision. See id., at 545 (explaining that the presumption against pre-emption “dissolves once there is conclusive evidence of intent to pre-empt in the express words of the statute itself ”). Since Cipollone, the Court’s reliance on the presumption against pre-emption has waned in the express pre-emption context. In 2002, for example, the Court unanimously explained that the “task of statutory construction must in the first instance focus on the plain wording of the [ex­ press pre-emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 537 U.S. 51, 62–63 (internal quotation marks omitted). Without referring to any presumption against pre-emption, the Court decided that the Federal Boat Safety Act of 1971’s express pre-emption provision did not pre-empt state-law claims. Id., at 62–64. Most other decisions since Cipollone also have refrained from invoking the presumption in the context of express pre­ emption. See, e.g., Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. ___ (2008); Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246 (2004); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001); United States v. Locke, 529 U.S. 89 (2000); Geier v. American Honda Motor Co., 529 U.S. 861 (2000). The Court has invoked the presumption sporadically during this time frame. As the majority notes, ante, at 5, Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), applied the presumption against pre-emption in deciding that the federal manufacturing and labeling requirements of the Medical Device Amendments of 1976 (MDA) did not pre­ empt state common-law claims. Id., at 500–501. Like Cipollone before it, Lohr produced a fractured decision featuring three opinions. 518 U.S., at 474 (opinion of STEVENS, J.), id., at 503 (BREYER, J., concurring in part 10 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting and concurring in judgment), id., at 509 (O’Connor, J., concurring in part and dissenting in part). And, like Cipollone, Lohr’s approach to express pre-emption pre­ dates the Court’s recent jurisprudence on the topic. In fact, this Court last year revisited the pre-emption provi­ sion of the MDA, 21 U.S. C. §360k(a)(1), and did not employ any presumption against pre-emption. Riegel v. Medtronic, Inc., 552 U. S. ___ (2008). See infra, at 11-13.2 More recently, in Reilly, 533 U.S. 525, a case revisiting the meaning of §5(b) of the Labeling Act, the Court briefly alluded to the presumption, but did not rely on it to reach its decision. See id., at 541–542, 546–551. Indeed, the Court’s cursory treatment of the presumption in Reilly stands in stark contrast to the First Circuit decision it reversed; the First Circuit relied heavily on the “full force” of the presumption to determine that the regulations at issue were not pre-empted. See Consolidated Cigar Corp. v. Reilly, 218 F.3d 30, 38–41 (2000). This Court, in over­ turning that judgment, declined to employ the presump­ tion in its construction of §5(b). See Reilly, 533 U.S., at 546–551. JUSTICE STEVENS highlighted this very point in dissent, arguing that if the presumption had been faith­ —————— 2 Also, as in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), the fractured decision in Lohr was a source of confusion for the lower courts. See Kemp v. Medtronic, Inc., 231 F.3d 216, 224 (CA6 2000) (“The various courts of appeals that have confronted issues of preemp­ tion arising under the MDA have struggled mightily with Lohr’s language in an effort to discern its holding”); see also Martin v. Med tronic, Inc., 254 F.3d 573, 579 (CA5 2001) (“Because only parts of Justice Stevens’s opinion commanded a majority, extracting the final meaning of Lohr is no easy task. . . . Although Justice Breyer’s concur­ rence very specifically disavows the view that common law duties cannot provide substantive requirements for the purpose of preemption, neither his concurrence nor the plurality opinion offers much help to us in developing the point”). The confusion was cleared up in Riegel. See infra, at 11–13. Cite as: 555 U. S. ____ (2008) 11 THOMAS, J., dissenting fully applied, the result would have been different. Id., at 591–593. The majority also relies on Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), where the presumption was again mentioned, but only in dicta. As in Reilly, the pre­ sumption did not drive the Court’s construction of the statute at issue. 544 U.S., at 449 (explaining that the presumption meant just that the holding of no pre­ emption would have been the same “even if [respondent’s] alternative [construction of the statute] were just as plau­ sible as our reading of the text”); see also id., at 457 (THOMAS, J., concurring in judgment in part and dissent­ ing in part) (agreeing that the case should be vacated and remanded and reiterating that the “presumption does not apply . . . when Congress has included within a statute an express pre-emption provision”). At bottom, although the Court’s treatment of the presumption against pre-emption has not been uniform, the Court’s express pre-emption cases since Cipollone have marked a retreat from reliance on it to distort the statutory text. If any doubt remained, it was eliminated last Term in Riegel. The question in Riegel, as noted above, was whether the MDA expressly pre-empts state common-law claims “challenging the safety and effectiveness of a medi­ cal device given premarket approval by the Food and Drug Administration.” 552 U. S., at ___ (slip op., at 1). Over the dissent of one Justice, the Court held that the state­ law claims were pre-empted because the requirements the plaintiffs sought to impose were “ ‘different from, or in addition to, any requirement applicable . . . to the device’ ” under federal law. Id., at ___ (slip op., at 2) (quoting 21 U.S. C. §360k(a)(1)). The Court interpreted the statute without reference to the presumption or any perceived need to impose a narrow construction on the provision in order to protect the police power of the States. Rather, the 12 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting Court simply construed the MDA in accordance with ordinary principles of statutory construction. This was not accidental. The dissent focused on the Court’s refusal to invoke the presumption in order to save the state-law claims from pre-emption. 552 U. S., at ___ (slip op., at ___) (opinion of GINSBURG, J.). The dissent was adamant that “[f]ederal laws containing a preemption clause do not automatically escape the presumption against pre-emption.” Ibid. (slip op., at 2–3); id., at ___ (slip op., at 3) (“Where the text of a pre-emption clause is open to more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption’ ” (quoting Bates, supra, at 449)). In accordance with the presump­ tion, the dissent would have found the state-law claims under review to fall beyond the reach of the MDA’s ex­ press pre-emption provision. 552 U. S., at ___ (slip op., at ___); see also id., at ___, n. 8 (slip op., at 6, n. 8); id., at ___, n. 9 (slip op., at 7, n. 9) (rejecting the majority’s construc­ tion of §360(d) because “the presumption against pre­ emption [is] operative even in construing a preemption clause”). Given the dissent’s clear call for the use of the presumption against pre-emption, the Court’s decision not to invoke it was necessarily a rejection of any role for the presumption in construing the statute. JUSTICE STEVENS also declined to invoke the presump­ tion in his opinion. Id., at ___ (opinion concurring in part and concurring in judgment). In his view, the “signifi­ cance of the pre-emption provision in the [MDA] was not fully appreciated until many years after it was enacted” and, therefore, it is “a statute whose text and general objective cover territory not actually envisioned by its authors.” Id., at ___ (slip op., at 1). But JUSTICE STEVENS’ opinion in Riegel—unlike the majority opinion here, the plurality opinion in Cipollone, and the dissenting opinion in Riegel—did not invoke the presumption to bend the text of the statute to meet the perceived purpose of Congress. Cite as: 555 U. S. ____ (2008) 13 THOMAS, J., dissenting Instead, JUSTICE STEVENS correctly found that “ ‘it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are gov­ erned.’ ” 552 U. S., at ___ (slip op., at 1) (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79–80 (1998)). In light of Riegel, there is no authority for invoking the presumption against pre-emption in express pre-emption cases. The majority here thus turns to Lohr to revive the presumption and, in turn, to justify its restrictive reading of the Labeling Act’s express pre-emption provision. But, as Riegel plainly shows, the Court is no longer willing to unreasonably interpret expressly pre-emptive federal laws in the name of “ ‘congressional purpose,’ ” ante, at 14, or because “Congress has legislated in a field traditionally occupied by the States,” ante, at 5. The text of the statute must control. Riegel also undermined Cipollone in an even more fun­ damental way: It conclusively decided that a common-law cause of action imposes a state-law “ ‘requiremen[t]’ ” that may be pre-empted by federal law. 552 U. S., at ___ (slip op., at 11) (“Absent other indication, reference to a State’s ‘requirements’ includes its common-law duties . . . . In­ deed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation [than regulatory legislation]”). Justice Blackmun’s contrary interpretation of §5(b) of the Labeling Act in Cipollone, 505 U.S., at 538–539 (opinion concurring in part, concurring in judgment in part, and dissenting in part), which provided the votes necessary for the judgment, thus is no longer tenable. In light of Riegel’s rejection of the presumption against pre-emption relied on by the plurality, as well as the definition of “re­ quirements” relied on in Justice Blackmun’s concurring opinion, Cipollone’s approach to express pre-emption is nothing more than “a remnant of abandoned doctrine.” 14 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 (1992). C The Cipollone plurality’s reading of §5(b) of the Labeling Act was further undermined by this Court’s decision in Reilly, 533 U.S. 525. There, the Court confronted regula­ tions imposed by the Massachusetts attorney general on the location of tobacco advertising pursuant to the Com­ monwealth’s unfair trade practices statute. Id., at 533– 536. The Court found the regulations—to the extent they applied to cigarettes—expressly pre-empted because, although Massachusetts remained free to enact “generally applicable zoning restrictions,” its imposition of “special requirements or prohibitions ‘based on smoking and health’ ‘with respect to the advertising or promotion of cigarettes’ ” fell within the ambit of §5(b)’s pre-emptive sweep. Id., at 551. Reilly did not ignore Cipollone. It cited the plurality opinion extensively in its discussion of the basic history and text of the Labeling Act. 533 U.S., at 540–546. But in analyzing whether the regulations enacted by the Mas­ sachusetts attorney general were expressly pre-empted, the Court was silent about Cipollone. 533 U.S., at 546– 551. Unlike the District Court, which saw “the central question for purposes of pre-emption [as] whether the regulations create[d] a predicate legal duty based on smoking and health,” id., at 537, the Court’s substantive examination of the regulations under §5(b) included no mention of the Cipollone plurality’s “predicate duty” test. See 533 U.S., at 546–551. Instead, the Court disagreed with “the Attorney General’s narrow construction” of the statute’s “ ‘based on smoking and health’ ” language, and concluded that the regulations were pre-empted because they were “motivated by” and “intertwined with” the concerns about smoking and health. Id., at 547–548. Cite as: 555 U. S. ____ (2008) 15 THOMAS, J., dissenting Reilly, therefore, cannot be reconciled with the Cipollone plurality’s interpretation of §5(b) of the Labeling Act. The regulations at issue in Reilly were enacted to implement a Massachusetts state law imposing a duty against unfair and deceptive trade practices—the same predicate duty asserted under the MUTPA in this case. 533 U.S., at 533. The state-law duty at issue in Reilly was no less general than the state-law duty at issue in this case or the state­ law fraud claims confronted in Cipollone. Compare Mass. Gen. Laws, ch. 93A, §2(a) (West 1996) (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful”), with Me. Rev. Stat. Ann., Tit. 5, §207 (Supp. 2008) (“Unfair methods of competition and unfair or de­ ceptive acts or practices in the conduct of any trade or commerce are declared unlawful”), and Cipollone, supra, at 528 (explaining that the “predicate” of the plaintiff’s fraudulent misrepresentation claim was “a state-law duty not to make false statements of material fact or to conceal such facts”). Faithful application of the Cipollone plurality opinion, therefore, would have required the Court in Reilly to uphold the regulations. Indeed, JUSTICE STEVENS argued as much in his dissent. 533 U.S., at 597 (noting that “[n]ary a word in any of the three Cipollone opinions supports the thesis that §5 should be interpreted to pre­ empt state regulation of the location of signs advertising cigarettes”). And yet, the majority today finds that Reilly and Cipol lone are perfectly compatible. It contends that, although the regulations in question in Reilly “derived from a gen­ eral deceptive practices statute like the one at issue in this case,” they were pre-empted because they “targeted adver­ tising that tended to promote tobacco use by children instead of prohibiting false or misleading statements.” Ante, at 12. According to the majority, that legal duty contrasts with the regulations here, as “[t]he MUTPA says 16 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting nothing about either ‘smoking’ or ‘health.’ ” Ante, at 13; see also ante, at 10. But the Cipollone plurality expressly rejected any distinction between targeted regulations like those in Reilly and general duties imposed by the common law. 505 U.S., at 522. In fact, the general duties underly­ ing the failure-to-warn and warning-neutralization claims in Cipollone—which the plurality found to be pre­ empted—say nothing about smoking and health. Id., at 524; see also id., at 553 (SCALIA, J., concurring in judg­ ment in part and dissenting in part) (noting that the duty to warn about a product’s dangers was not “specifically crafted with an eye toward ‘smoking and health’ ”). Accordingly, Reilly is better understood as establishing that even a general duty can impose requirements or prohibitions based on smoking and health. Reilly weak­ ened the force of the Cipollone plurality’s “predicate duty” approach to the pre-emptive effect of §5(b) and cast doubt on its continuing utility. D Finally, the Cipollone plurality’s approach should be discarded because its “predicate duty” approach is unper­ suasive as an initial matter. In considering the warning­ neutralization claim, for example, the Cipollone plurality asserted that the claim is predicated on a state-law prohi­ bition against minimizing the health risks associated with smoking. 505 U.S., at 527. The Court today reaffirms this view. Ante, at 10; see also ante, at 13 (describing §5(b) as expressly pre-empting “rules . . . that are based on smoking and health”). But every products liability action, including a failure-to-warn action, applies generally to all products. See Cipollone, supra, at 553 (opinion of SCALIA, J.). Thus, the “duty” or “rule” involved in a failure-to-warn claim is no more specific to smoking and health than is a common-law fraud claim based on the “duty” or “rule” not to use deceptive or misleading trade practices. Yet only Cite as: 555 U. S. ____ (2008) 17 THOMAS, J., dissenting for the latter was the Cipollone plurality content to ignore the context in which the claim is asserted. This shifting level of generality was identified as a logical weakness in the original Cipollone plurality decision by a majority of the Court, 505 U.S., at 543 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); id., at 553–554 (opinion of SCALIA, J.), and it re­ mains equally unconvincing today. It is therefore unsurprising that the Court’s defense of the plurality’s confusing test is confined to one sentence and a footnote. See ante, at 13–14 (“While we again ac­ knowledge that our analysis of these claims may lack ‘theoretical elegance,’ we remain persuaded that it repre­ sents ‘a fair understanding of congressional purpose’ ” (quoting Cipollone, supra, at 529–530, n. 27)); ante, at 10, n. 7. The majority instead argues that this approach “fails to explain why Congress would . . . permi[t] cigarette manufacturers to engage in fraudulent advertising.” Ante, at 10, n. 7. But no explanation is necessary; the text speaks for itself. Congress has pre-empted only those claims that would impose “requirement[s] or prohibition[s] based on smoking and health.” 15 U.S. C. §1334(b). Thus, if cigarette manufacturers were to falsely advertise their products as “American-made,” or “the official ciga­ rette of Major League Baseball,” state-law claims arising from that wrongful behavior would not be pre-empted. Furthermore, contrary to the majority’s policy argu­ ments, faithful application of the statutory language does not authorize fraudulent advertising with respect to smok­ ing and health.3 Any misleading promotional statements —————— 3 The majority’s policy-based attack could just as easily be leveled against its own determination that the Labeling Act pre-empts failure­ to-warn claims. But just as there is no basis in fact or law to contend that the Labeling Act encourages the marketing of hazardous products without adequate warning labels, ante, at 10, n. 8, there is no basis to contend that the text of the Labeling Act permits fraudulent 18 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting for cigarettes remain subject to federal regulatory over­ sight under the Labeling Act. See §1336. The relevant question thus is not whether “petitioners will be prohib­ ited from selling as ‘light’ or ‘low tar’ only those cigarettes that are not actually light and do not actually deliver less tar and nicotine.” Ante, at 12, n. 10. Rather, the issue is whether the Labeling Act allows regulators and juries to decide, on a state-by-state basis, whether petitioners’ light and low-tar descriptors were in fact fraudulent, or instead whether §5(b) charged the Federal Government with reaching a comprehensive judgment with respect to this question. Congress chose a uniform federal standard. Under the Labeling Act, Congress “establish[ed] a comprehensive Federal Program to deal with cigarette labeling and ad­ vertising,” 15 U.S. C. §1331, so that “commerce and the national economy may . . . not [be] impeded by diverse, nonuniform, and confusing cigarette labeling and advertis­ ing regulations with respect to any relationship between smoking and health,” §1331(2)(B).4 The majority’s dis­ torted interpretation of §5(b) defeats this express congres­ sional purpose, opening the door to an untold number of deceptive-practices lawsuits across the country. The question whether marketing a light cigarette is “ ‘misrep­ resentative’ ” in light of compensatory behavior “would almost certainly be answered differently from State to State.” Cipollone, supra, 505 U. S., at 553 (opinion of —————— advertising. 4 The majority contends that the relatively constrained enforcement power of the Federal Trade Commission (FTC) in 1970 undermines any argument that Congress intended the Labeling Act to prevent States from regulating deceptive advertising and marketing of cigarettes. Ante, at 8, n. 6. I am unwilling to rely on the majority’s perception of the relative power of the FTC in 1970 to ignore Congress’ stated pur­ pose in enacting the Labeling Act and the plain meaning of the Act’s express pre-emption provision. Cite as: 555 U. S. ____ (2008) 19 THOMAS, J., dissenting SCALIA, J.). This will inevitably result in the nonuniform imposition of liability for the marketing of light and/or low-tar cigarettes—the precise problem that Congress intended §5(b) to remedy. In light of these serious flaws in the majority’s ap­ proach, even if the Cipollone plurality opinion were bind­ ing precedent, the Court “should not hesitate to allow our precedent to yield to the true meaning of an Act of Con­ gress when our statutory precedent is ‘unworkable’ or ‘badly reasoned.’ ” Clark v. Martinez, 543 U.S. 371, 402 (2005) (THOMAS, J., dissenting) (quoting Holder v. Hall, 512 U.S. 874, 936 (1994) (THOMAS, J., concurring in judgment), in turn quoting Payne, 501 U.S., at 827 (some internal quotation marks omitted)). Where, as here, there is “confusion following a splintered decision,” that “is itself a reason for reexamining that decision.” Nichols v. United States, 511 U.S. 738, 746 (1994). When a decision of this Court has failed to properly interpret a statute, we should not “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U.S. 61, 69–70 (1946).5 III Applying the proper test—i.e., whether a jury verdict on respondents’ claims would “impos[e] an obligation” on the cigarette manufacturer “because of the effect of smoking upon health,” Cipollone, supra, at 554 (SCALIA, J., concur­ ring in judgment in part and dissenting in part), respon­ dents’ state-law claims are expressly pre-empted by §5(b) —————— 5 The United States, in its amicus brief and at oral argument, con­ spicuously declined to address express pre-emption or defend the Cipollone opinion’s reasoning. See Brief for United States as Amicus Curiae 14–33. Instead, it addressed only the question of implied pre­ emption, an issue I do not reach because of my resolution of the ques­ tion on express pre-emption. 20 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting of the Labeling Act. Respondents, longtime smokers of Marlboro Lights, claim that they have suffered an injury as a result of petitioners’ decision to advertise these ciga­ rettes as “light” and/or “low-tar and low nicotine products.” 436 F. Supp. 2d, at 144–145. They claim that petitioners marketed their cigarettes as “light” and/or “low-tar and low-nicotine products” despite knowledge that light­ cigarette smokers would engage in compensatory behavior causing them to inhale at least as much tar and nicotine as smokers of regular cigarettes. Ibid. Respondents thus allege that they were misled into thinking that they were gaining a health advantage by smoking the light ciga­ rettes, ibid., and, as a result, petitioners’ conduct was an “unfair or deceptive act or practice” under the MUTPA. Me. Rev. Stat. Ann., Tit. 5, §207; 436 F. Supp. 2d, at 133. Respondents’ claims seek to impose liability on petition­ ers because of the effect that smoking light cigarettes had on their health. The alleged misrepresentation here—that “light” and “low-tar” cigarettes are not as healthy as ad­ vertised—is actionable only because of the effect that smoking light and low-tar cigarettes had on respondents’ health. Otherwise, any alleged misrepresentation about the effect of the cigarettes on health would be immaterial for purposes of the MUTPA and would not be the source of the injuries that provided the impetus for the class-action lawsuit. See State v. Weinschenk, 2005 ME 28, ¶17, 868 A.2d 200, 206 (“An act or practice is deceptive [under the MUTPA] if it is a material representation, omission, act or practice that is likely to mislead consumers acting rea­ sonably under the circumstances” (emphasis added)). Therefore, with this suit, respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the “light” or “low-tar” descrip­ tors. This is exactly the type of lawsuit that is pre-empted by the Labeling Act. Cf. Rowe, 552 U. S., at ___ (slip op., Cite as: 555 U. S. ____ (2008) 21 THOMAS, J., dissenting at 6) (finding pre-emption of a Maine regulation of ship­ ping of tobacco products where “[t]he Maine law . . . pro­ duces the very effect that the federal law sought to avoid”). Because the proper test for pre-emption is to look at the factual basis of a complaint to determine if a claim im­ poses a requirement based on smoking and health, there is no meaningful distinction to be drawn in this case between common-law failure-to-warn claims and claims under the MUTPA.6 As the majority readily admits, both types of claims impose duties with respect to the same conduct— i.e., the marketing of “light,” “low-tar,” and “low-nicotine” cigarettes. See ante, at 11, n. 9. If the claims arise from identical conduct, the claims impose the same requirement or prohibition with respect to that conduct. And when that allegedly wrongful conduct involves misleading statements about the health effects of smoking a particu­ lar brand of cigarette, the liability and resulting require­ ment or prohibition are, by definition, based on smoking and health. Finally, at oral argument, respondents argued that their claims do not impose requirements based on smoking and health because the damages they seek to recover are not —————— 6 The majority’s observation that no warning-neutralization claim is at issue in this case, ante, at 11 n. 9, misses the point. The principal weakness in the Cipollone plurality’s logic is not its distinction between claims for warning neutralization and claims for fraud. It is the fact that the predicate duty underlying New Jersey’s products liability law, from which the majority now claims the warning-neutralization claim derived, see ante, at 11, n. 8, was no more specific to smoking and health than the predicate duty underlying the fraud claim, see Cipol lone, 505 U.S., at 552–553 (opinion of SCALIA, J.) (“Each duty tran­ scends the relationship between the cigarette companies and cigarette smokers; neither duty was specifically crafted with an eye toward ‘smoking and health’ ”); id., at 543 (opinion of Blackmun, J.); see also supra, at 16. Thus, the products-liability and the fraud claims must stand or fall together. The majority’s refusal to address the logical inconsistency of its approach remains as glaring today as it was in Cipollone. 22 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting based on the effect of smoking on their health; rather, respondents are “asking . . . for the difference in value between a product [they] thought [they] were buying and a product [they] actually bought.” Tr. of Oral Arg. 29. But the requirement or prohibition covered by §5(b) is created by the imposition of liability for particular conduct—here, the way in which petitioners marketed “light” and “low­ tar,” and “low-nicotine” cigarettes—not by the manner in which respondents have chosen to measure their damages. No matter how respondents characterize their damages claim, they have not been injured for purposes of the MUTPA, and thus cannot recover, unless their decision to purchase the cigarettes had a negative effect on their health. In any event, respondents sought “such injunctive relief as may be appropriate” in this case. App. 42a. The MUTPA specifically authorizes “other equitable relief, including an injunction,” to remedy unfair or deceptive trade practices. Me. Rev. Stat. Ann., Tit. 5, §213(1) (West 2002). And a court-crafted injunction prohibiting petition­ ers from marketing light cigarettes would be no less a requirement or prohibition than the regulations found to be pre-empted in Reilly. In the end, no matter what form the remedy takes, the liability with respect to the specific claim still creates the requirement or prohibition. When that liability is necessarily premised on the effects of smoking on health, as respondents’ claims are here, the civil action is pre-empted by §5(b) of the Labeling Act. IV The Court today elects to convert the Cipollone plural­ ity opinion into binding law, notwithstanding its weak­ ened doctrinal foundation, its atextual construction of the statute, and the lower courts’ inability to apply its meth­ odology. The resulting confusion about the nature of a claim’s “predicate duty” and inevitable disagreement in Cite as: 555 U. S. ____ (2008) 23 THOMAS, J., dissenting the lower courts as to what type of representations are “material” and “misleading” will have the perverse effect of increasing the nonuniformity of state regulation of cigarette advertising, the exact problem that Congress intended §5(b) to remedy. It may even force us to yet again revisit the Court’s interpretation of the Labeling Act. Because I believe that respondents’ claims are pre­ empted under §5(b) of the Labeling Act, I respectfully dissent

This appeal requires the to revisit its decision in As in that case, the question before us is whether state-law claims alleging that cigarette manufacturers misled the public about the health effects of cigarettes are pre­ empted by the Federal Cigarette Labeling and Advertising Act, as amended in 1969 (Labeling Act or Act). The Label­ ing Act requires that specific health warnings be placed on all cigarette packaging and advertising, 15 U.S. C. in order to eliminate “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” To that end, of the Labeling Act pre-empts any “re­ quirement or prohibition based on smoking and health imposed under State law with respect to the advertising or promotion of any cigarettes.” Whether pre-empts state common-law claims divided the in The plurality opinion found some claims expressly pre-empted and others not, depending on whether “the legal duty that is the predicate of the common-law damages action constitutes a require­ ment or prohibition based on smoking and health imposed under State law with respect to advertising or 2 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting promotion.” (internal quotation marks omitted; emphasis added). A majority of the dis­ agreed with the plurality’s predicate-duty approach. (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); at 552–554 (SCALIA, J., concurring in judgment in part and dissenting in part). In particular, JUSTICE SCALIA recognized that the plurality’s interpretation of created an unwork­ able test for pre-emption with little or no relationship to the text of the 555–556. The interven­ ing years have vindicated JUSTICE SCALIA’s critical as­ sessment; the lower courts have consistently expressed frustration at the difficulty in applying the plurality’s test. Moreover, this ’s recent pre-emption decisions have undermined, and in some cases overruled, central aspects of the plurality’s atextual approach to express pre-emption generally, Riegel v. Medtronic, Inc., 552 U. S. (2008), and to of the Labeling Act specifically, Lorillard Tobacco The majority today ignores these problems and adopts the methodology of the plurality as governing As a consequence, the majority concludes that state­ law liability for deceiving purchasers about the health effects of smoking light cigarettes is not a “requirement or prohibition based on smoking and health” under the La­ beling The ’s fidelity to is unwise and unnecessary. The should instead provide the lower courts with a clear test that advances Congress’ stated goals by interpreting to expressly pre-empt any claim that “imposes an obligation because of the effect of smoking upon health.” (opinion of SCALIA, J.). Respondents’ lawsuit under the Maine Unfair Trade Practices Act (MUTPA), Me. Rev. Stat. Ann., Tit. 5, (Supp. 2008), is expressly pre-empted under of the Cite as: 555 U. S. (2008) 3 THOMAS, J., dissenting Labeling The civil action is premised on the allega­ tion that the cigarette manufacturers misled respondents into believing that smoking light cigarettes would be healthier for them than smoking regular cigarettes. A judgment in respondents’ favor will thus result in a “re­ quirement” that petitioners represent the effects of smok­ ing on health in a particular way in their advertising and promotion of light cigarettes. Because liability in this case is thereby premised on the effect of smoking on health, I would hold that respondents’ state-law claims are ex­ pressly pre-empted by of the Labeling I respect­ fully I In a smoker and her spouse brought state common-law claims for fraud, breach of warranty, and failure to warn against cigarette manufacturers for their alleged failure to adequately disclose the health risks of As here, the cigarette manu­ facturer asserted that the claims were pre-empted by of the Labeling In deciding the case, the could not agree on the meaning of the Labeling Act’s express pre-emption provi­ sion. It produced three separate opinions, none of which reflected the views of a majority of Justices. Relying heavily on a “presumption against the pre-emption of state police power regulations,” a plurality opinion by JUSTICE STEVENS settled on a “narrow reading” of the Labeling Act that tested ’s pre-emptive effect under a claim-by­ claim approach. This approach considered each state-law claim and asked whether it is predicated “on a duty ‘based on smoking and health.’ ” ; see also If so, the claim is pre-empted. 528. If, however, the claim is predicated on a “more gen­ eral obligation” under state law, it may proceed. at 528–529. 4 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting Applying a test that it conceded lacked “theoretical elegance,” the plurality held that the failure-to-warn claims were pre-empted “to the extent that those claims rel[ied] on omissions or inclusions in advertising or promotions” of cigarettes. The same was true for one of the fraud claims, which alleged that the cigarette manufacturers had used their advertis­ ing to neutralize the federally required warning labels. –528. The plurality determined that these claims were “predicated on a state-law prohibition against statements that tend to minimize the health hazards associated with ” Thus, according to the plurality, these state-law claims sought recovery under the theory that the cigarette manufacturer breached a duty based on smoking or health. But the plurality found that the other fraud claim, which alleged misrepresentation or concealment of a material fact, was not pre-empted because it was based on a more general state-law obligation: “the duty not to deceive.” – 529. Justice Blackmun, writing for three Justices, departed from the plurality on the antecedent question whether the Labeling Act pre-empted state common-law damages claims at all. –542 (opinion, joined by KENNEDY and SOUTER, JJ., concurring in part, concurring in judg­ ment in part, and dissenting in part). He concluded that the phrase “ ‘State law’ ” in referred only to “positive enactments such as statutes and regulations.” But Justice Blackmun specifically noted that even if state common-law claims were within the scope of the Labeling Act, he could not join the plurality’s claim-by-claim ap­ proach because he “perceive[d] no principled basis for many of the plurality’s asserted distinctions among the common-law claims.” Justice Blackmun wrote that Congress could not have “intended to create such a hodgepodge of allowed and disallowed claims when it Cite as: 555 U. S. (2008) 5 THOMAS, J., dissenting amended the pre-emption provision in 1970,” and la­ mented the “difficulty lower courts w[ould] encounter in attempting to implement” the plurality’s test. – 544. JUSTICE SCALIA, writing for two Justices, also faulted the plurality for its claim-by-claim approach. – 556 (opinion, joined by THOMAS, J., concurring in judg­ ment in part and dissenting in part). Although he agreed with the plurality that the phrase “ ‘State law’ ” in encompassed state common-law claims as well as state statutes and regulations, –549, JUSTICE SCALIA objected to the plurality’s invocation of a presumption against pre-emption to narrowly interpret at 544, 545–547. Because Congress had expressed its intent to pre-empt state law by enacting the ’s “re­ sponsibility [was] to apply to the text ordinary principles of statutory construction.”1 By employing its “newly crafted doctrine of narrow construction,” JUSTICE SCALIA wrote, the plurality arrived at a cramped and unnatural construction of that failed to give effect to the statutory text. –548. Applying “ordinary principles” of statutory construction, JUSTICE SCALIA determined that the proper test for pre-emption of state-law claims under was far less complicated than the plurality’s claim-by-claim approach. As he explained, “[o]nce one is forced to select a consistent methodology for evaluating whether a given legal duty is ‘based on smoking and health,’ it becomes obvious that the methodology must focus not upon the —————— 1 JUSTICE SCALIA also criticized the plurality for announcing a new rule that the enactment of an express pre-emption clause eliminates any consideration of implied pre-emption. He explained that this new rule created mischief because, when combined with the presumption against pre-emption, it placed a heavy burden of exactitude on Con­ gress when it wishes to say anything about pre-emption. See –548. 6 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting ultimate source of the duty but upon its proximate application.” This “proximate application” test, therefore, focuses not on the state-law duty invoked by the plaintiff, but on the effect of the suit on the ciga­ rette manufacturer’s conduct—i.e., the “requirement” or “prohibition” that would be imposed under state Put simply, if, “whatever the source of the duty, [the claim] imposes an obligation because of the effect of smoking upon health,” it is pre-empted. ; see also at 555 (“The test for pre-emption in this setting should be one of practical compulsion, i.e., whether the law practi­ cally compels the manufacturers to engage in behavior that Congress has barred the States from prescribing directly”). JUSTICE SCALIA also seconded Justice Black­ mun’s concern that the lower courts would find the plural­ ity’s distinctions between materially identical state-law claims to be incapable of application: “A disposition that raises more questions than it answers does not serve the country well.” II Sixteen years later, we must confront to re­ solve the question presented in this case: whether respon­ dents’ class-action claims for fraudulent marketing under the MUTPA are pre-empted by of the Labeling The majority adheres to because it “remain[s] persuaded” that the plurality’s construction of the was “ ‘fair.’ ” Ante, at 13–14. I disagree. The should discard the plurality’s ill-conceived predicate­ duty approach and replace it with JUSTICE SCALIA’s far more workable and textually sound “proximate applica­ tion” test. The majority does not assert that the plurality opinion is binding precedent, and rightly so. Because the “plurality opinion did not represent the views of a majority of the we are not bound by its reasoning.” Cite as: 555 U. S. (2008) 7 THOMAS, J., dissenting CTS (1987) (footnote omitted). At most, is a “point of reference for further discussion.” Texas v. Brown, 460 U.S. 730, 737 (1983) But even if the plurality opinion had some force beyond its mere persua­ sive value, it nevertheless should be abandoned. It is unworkable; it has been overtaken by more recent deci­ sions of this ; and it cannot be reconciled with a commonsense reading of the text of A As predicted by a majority of the Justices in the plurality opinion’s claim-by-claim approach has proved unworkable in the lower federal courts and state courts. The District in this case properly observed that “courts remain divided about what the decision means and how to apply it” and that “’s distinctions, though clear in theory, defy clear application.” 436 F. Supp. 2d 132, 142 (Me. 2006). Other courts have expressed similar frustration with the framework. See, e.g., (“Applying the plurality opinion in to the Complaint in the present case is no easy task”); Hud 1380 (ND Ga. 1999) (“It would be an understatement to say that it is difficult to apply the plurality opinion in to the Amended Complaint in this It is an impossibility”); In re Welding Fume Prods. Liability Liti gation, 6, n. 13 (“[I]n the Supreme delivered a frac­ tured plurality opinion that is not easy to comprehend”); (“[ is] ‘diffi­ cult’ due to the inherent contradiction at the core of the case”); Mangini v. R. J. Reynolds Tobacco Co., 21 Cal. Rptr. 2d 232, 244 (Cal. App. 1993) (“ draws no 8 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting bright lines amenable to easy application”), aff’d, 7 Cal. 4th 1057, The should not retain an interpretative test that has proved incapable of implementation. “[T]he mischie­ vous consequences to litigants and courts alike from the perpetuation of an unworkable rule are too great.” Swift & ; Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. (2007) (slip op., at 20) (SCALIA, J., concurring in part and concurring in judgment) ). We owe far more to the lower courts, which depend on this ’s guidance, and to litigants, who must conform their actions to the ’s interpretation of federal The plurality’s test for pre-emption under should be abandoned for this reason a. B Furthermore, in the years since was decided, this has altered its doctrinal approach to express pre-emption. The plurality justified what it described as the “theoretical [in]elegance” of its construc­ tion of by relying on the presumption against pre­ emption, which, it argued, required a narrow, but “fair,” construction of the 505 U.S., See, e.g., (“This presumption reinforces the appropriateness of a narrow reading of (“[W]e must narrowly construe the precise language of ”); ( must be given “a fair but narrow reading”); (“[W]e conclude that the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent state­ ments”). Of course, as JUSTICE SCALIA explained, there Cite as: 555 U. S. (2008) 9 THOMAS, J., dissenting was nothing “fair” about imposing an artificially narrow construction on the Labeling Act’s pre-emption provision. See (explaining that the presumption against pre-emption “dissolves once there is conclusive evidence of intent to pre-empt in the express words of the statute itself ”). Since the ’s reliance on the presumption against pre-emption has waned in the express pre-emption context. In 2002, for example, the unanimously explained that the “task of statutory construction must in the first instance focus on the plain wording of the [ex­ press pre-emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma v. Mercury Marine, 62–63 (internal quotation marks omitted). Without referring to any presumption against pre-emption, the decided that the Federal Boat Safety Act of 1971’s express pre-emption provision did not pre-empt state-law claims. at 62–64. Most other decisions since also have refrained from invoking the presumption in the context of express pre­ emption. See, e.g., Rowe v. New Hampshire Motor Transp. Assn., 552 U. S. (2008); Engine Mfrs. ; Buckman ; United ; Geier v. American Honda Motor Co., The has invoked the presumption sporadically during this time frame. As the majority notes, ante, at 5, Medtronic, applied the presumption against pre-emption in deciding that the federal manufacturing and labeling requirements of the Medical Device Amendments of 1976 (MDA) did not pre­ empt state common-law claims. at 500–501. Like before it, Lohr produced a fractured decision featuring three (opinion of STEVENS, J.), (BREYER, J., concurring in part 10 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting and concurring in judgment), (O’Connor, J., concurring in part and dissenting in part). And, like Lohr’s approach to express pre-emption pre­ dates the ’s recent jurisprudence on the topic. In fact, this last year revisited the pre-emption provi­ sion of the MDA, 21 U.S. C. and did not employ any presumption against pre-emption. Riegel v. Medtronic, Inc., 552 U. S. (2008). See infra, at 11-13.2 More recently, in Reilly, a case revisiting the meaning of of the Labeling Act, the briefly alluded to the presumption, but did not rely on it to reach its decision. See at 541–542, 546–551. Indeed, the ’s cursory treatment of the presumption in Reilly stands in stark contrast to the First Circuit decision it reversed; the First Circuit relied heavily on the “full force” of the presumption to determine that the regulations at issue were not pre-empted. See Consolidated Cigar Corp. v. Reilly, This in over­ turning that judgment, declined to employ the presump­ tion in its construction of See Reilly, 533 U.S., at 546–551. JUSTICE STEVENS highlighted this very point in dissent, arguing that if the presumption had been faith­ —————— 2 Also, as in the fractured decision in Lohr was a source of confusion for the lower courts. See (“The various courts of appeals that have confronted issues of preemp­ tion arising under the MDA have struggled mightily with Lohr’s language in an effort to discern its holding”); see also (“Because only parts of Justice Stevens’s opinion commanded a majority, extracting the final meaning of Lohr is no easy task. Although Justice Breyer’s concur­ rence very specifically disavows the view that common law duties cannot provide substantive requirements for the purpose of preemption, neither his concurrence nor the plurality opinion offers much help to us in developing the point”). The confusion was cleared up in Riegel. See infra, at 11–13. Cite as: 555 U. S. (2008) 11 THOMAS, J., dissenting fully applied, the result would have been different. at 591–593. The majority also relies on where the presumption was again mentioned, but only in dicta. As in Reilly, the pre­ sumption did not drive the ’s construction of the statute at (explaining that the presumption meant just that the holding of no pre­ emption would have been the same “even if [respondent’s] alternative [construction of the statute] were just as plau­ sible as our reading of the text”); see also (THOMAS, J., concurring in judgment in part and dissent­ ing in part) (agreeing that the case should be vacated and remanded and reiterating that the “presumption does not apply when Congress has included within a statute an express pre-emption provision”). At bottom, although the ’s treatment of the presumption against pre-emption has not been uniform, the ’s express pre-emption cases since have marked a retreat from reliance on it to distort the statutory text. If any doubt remained, it was eliminated last Term in Riegel. The question in Riegel, as noted above, was whether the MDA expressly pre-empts state common-law claims “challenging the safety and effectiveness of a medi­ cal device given premarket approval by the Food and Drug Administration.” 552 U. S., at (slip op., at 1). Over the dissent of one Justice, the held that the state­ law claims were pre-empted because the requirements the plaintiffs sought to impose were “ ‘different from, or in addition to, any requirement applicable to the device’ ” under federal at (slip op., at 2) (quoting 21 U.S. C. The interpreted the statute without reference to the presumption or any perceived need to impose a narrow construction on the provision in order to protect the police power of the States. Rather, the 12 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting simply construed the MDA in accordance with ordinary principles of statutory construction. This was not accidental. The dissent focused on the ’s refusal to invoke the presumption in order to save the state-law claims from pre-emption. 552 U. S., at (slip op., at ) (opinion of GINSBURG, J.). The dissent was adamant that “[f]ederal laws containing a preemption clause do not automatically escape the presumption against pre-emption.” ; at (slip op., at 3) (“Where the text of a pre-emption clause is open to more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption’ ” (quoting )). In accordance with the presump­ tion, the dissent would have found the state-law claims under review to fall beyond the reach of the MDA’s ex­ press pre-emption provision. 552 U. S., at (slip op., at ); see also at n. 8 (slip op., at 6, n. 8); at n. 9 (slip op., at 7, n. 9) (rejecting the majority’s construc­ tion of because “the presumption against pre­ emption [is] operative even in construing a preemption clause”). Given the dissent’s clear call for the use of the presumption against pre-emption, the ’s decision not to invoke it was necessarily a rejection of any role for the presumption in construing the JUSTICE STEVENS also declined to invoke the presump­ tion in his opinion. at (opinion concurring in part and concurring in judgment). In his view, the “signifi­ cance of the pre-emption provision in the [MDA] was not fully appreciated until many years after it was enacted” and, therefore, it is “a statute whose text and general objective cover territory not actually envisioned by its authors.” at (slip op., at 1). But JUSTICE STEVENS’ opinion in Riegel—unlike the majority opinion here, the plurality opinion in and the dissenting opinion in Riegel—did not invoke the presumption to bend the text of the statute to meet the perceived purpose of Congress. Cite as: 555 U. S. (2008) 13 THOMAS, J., dissenting Instead, JUSTICE STEVENS correctly found that “ ‘it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are gov­ erned.’ ” 552 U. S., at (slip op., at 1) (quoting Oncale v. Sundowner Offshore Services, Inc., 79–80 (1998)). In light of Riegel, there is no authority for invoking the presumption against pre-emption in express pre-emption cases. The majority here thus turns to Lohr to revive the presumption and, in turn, to justify its restrictive reading of the Labeling Act’s express pre-emption provision. But, as Riegel plainly shows, the is no longer willing to unreasonably interpret expressly pre-emptive federal laws in the name of “ ‘congressional purpose,’ ” ante, at 14, or because “Congress has legislated in a field traditionally occupied by the States,” ante, at 5. The text of the statute must control. Riegel also undermined in an even more fun­ damental way: It conclusively decided that a common-law cause of action imposes a state-law “ ‘requiremen[t]’ ” that may be pre-empted by federal 552 U. S., at (slip op., at 11) (“Absent other indication, reference to a State’s ‘requirements’ includes its common-law duties In­ deed, one would think that tort law, applied by juries under a negligence or strict-liability standard, is less deserving of preservation [than regulatory legislation]”). Justice Blackmun’s contrary interpretation of of the Labeling Act in –539 (opinion concurring in part, concurring in judgment in part, and dissenting in part), which provided the votes necessary for the judgment, thus is no longer tenable. In light of Riegel’s rejection of the presumption against pre-emption relied on by the plurality, as well as the definition of “re­ quirements” relied on in Justice Blackmun’s concurring opinion, ’s approach to express pre-emption is nothing more than “a remnant of abandoned doctrine.” 14 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 C The plurality’s reading of of the Labeling Act was further undermined by this ’s decision in Reilly, There, the confronted regula­ tions imposed by the Massachusetts attorney general on the location of tobacco advertising pursuant to the Com­ monwealth’s unfair trade practices at 533– 536. The found the regulations—to the extent they applied to cigarettes—expressly pre-empted because, although Massachusetts remained free to enact “generally applicable zoning restrictions,” its imposition of “special requirements or prohibitions ‘based on smoking and health’ ‘with respect to the advertising or promotion of cigarettes’ ” fell within the ambit of ’s pre-emptive sweep. Reilly did not ignore It cited the plurality opinion extensively in its discussion of the basic history and text of the Labeling –546. But in analyzing whether the regulations enacted by the Mas­ sachusetts attorney general were expressly pre-empted, the was silent about – 551. Unlike the District which saw “the central question for purposes of pre-emption [as] whether the regulations create[d] a predicate legal duty based on smoking and health,” the ’s substantive examination of the regulations under included no mention of the plurality’s “predicate duty” test. See –551. Instead, the disagreed with “the Attorney General’s narrow construction” of the statute’s “ ‘based on smoking and health’ ” language, and concluded that the regulations were pre-empted because they were “motivated by” and “intertwined with” the concerns about smoking and health. at 547–548. Cite as: 555 U. S. (2008) 15 THOMAS, J., dissenting Reilly, therefore, cannot be reconciled with the plurality’s interpretation of of the Labeling The regulations at issue in Reilly were enacted to implement a Massachusetts state law imposing a duty against unfair and deceptive trade practices—the same predicate duty asserted under the MUTPA in this The state-law duty at issue in Reilly was no less general than the state-law duty at issue in this case or the state­ law fraud claims confronted in Compare Mass. Gen. Laws, ch. 93A, (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful”), with Me. Rev. Stat. Ann., Tit. 5, (Supp. 2008) (“Unfair methods of competition and unfair or de­ ceptive acts or practices in the conduct of any trade or commerce are declared unlawful”), and (explaining that the “predicate” of the plaintiff’s fraudulent misrepresentation claim was “a state-law duty not to make false statements of material fact or to conceal such facts”). Faithful application of the plurality opinion, therefore, would have required the in Reilly to uphold the regulations. Indeed, JUSTICE STEVENS argued as much in his (noting that “[n]ary a word in any of the three opinions supports the thesis that should be interpreted to pre­ empt state regulation of the location of signs advertising cigarettes”). And yet, the majority today finds that Reilly and Cipol are perfectly compatible. It contends that, although the regulations in question in Reilly “derived from a gen­ eral deceptive practices statute like the one at issue in this case,” they were pre-empted because they “targeted adver­ tising that tended to promote tobacco use by children instead of prohibiting false or misleading statements.” Ante, at 12. According to the majority, that legal duty contrasts with the regulations here, as “[t]he MUTPA says 16 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting nothing about either ‘smoking’ or ‘health.’ ” Ante, at 13; see also ante, at 10. But the plurality expressly rejected any distinction between targeted regulations like those in Reilly and general duties imposed by the common In fact, the general duties underly­ ing the failure-to-warn and warning-neutralization claims in —which the plurality found to be pre­ empted—say nothing about smoking and health. at 524; see also (SCALIA, J., concurring in judg­ ment in part and dissenting in part) (noting that the duty to warn about a product’s dangers was not “specifically crafted with an eye toward ‘smoking and health’ ”). Accordingly, Reilly is better understood as establishing that even a general duty can impose requirements or prohibitions based on smoking and health. Reilly weak­ ened the force of the plurality’s “predicate duty” approach to the pre-emptive effect of and cast doubt on its continuing utility. D Finally, the plurality’s approach should be discarded because its “predicate duty” approach is unper­ suasive as an initial matter. In considering the warning­ neutralization claim, for example, the plurality asserted that the claim is predicated on a state-law prohi­ bition against minimizing the health risks associated with 505 U.S., The today reaffirms this view. Ante, at 10; see also ante, at 13 (describing as expressly pre-empting “rules that are based on smoking and health”). But every products liability action, including a failure-to-warn action, applies generally to all products. See (opinion of SCALIA, J.). Thus, the “duty” or “rule” involved in a failure-to-warn claim is no more specific to smoking and health than is a common-law fraud claim based on the “duty” or “rule” not to use deceptive or misleading trade practices. Yet only Cite as: 555 U. S. (2008) 17 THOMAS, J., dissenting for the latter was the plurality content to ignore the context in which the claim is asserted. This shifting level of generality was identified as a logical weakness in the original plurality decision by a majority of the 505 U.S., (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); –554 (opinion of SCALIA, J.), and it re­ mains equally unconvincing today. It is therefore unsurprising that the ’s defense of the plurality’s confusing test is confined to one sentence and a footnote. See ante, at 13–14 (“While we again ac­ knowledge that our analysis of these claims may lack ‘theoretical elegance,’ we remain persuaded that it repre­ sents ‘a fair understanding of congressional purpose’ ” (quoting –530, n. 27)); ante, at 10, n. 7. The majority instead argues that this approach “fails to explain why Congress would permi[t] cigarette manufacturers to engage in fraudulent advertising.” Ante, at 10, n. 7. But no explanation is necessary; the text speaks for itself. Congress has pre-empted only those claims that would impose “requirement[s] or prohibition[s] based on smoking and health.” 15 U.S. C. Thus, if cigarette manufacturers were to falsely advertise their products as “American-made,” or “the official ciga­ rette of Major League Baseball,” state-law claims arising from that wrongful behavior would not be pre-empted. Furthermore, contrary to the majority’s policy argu­ ments, faithful application of the statutory language does not authorize fraudulent advertising with respect to smok­ ing and health.3 Any misleading promotional statements —————— 3 The majority’s policy-based attack could just as easily be leveled against its own determination that the Labeling Act pre-empts failure­ to-warn claims. But just as there is no basis in fact or law to contend that the Labeling Act encourages the marketing of hazardous products without adequate warning labels, ante, at 10, n. 8, there is no basis to contend that the text of the Labeling Act permits fraudulent 18 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting for cigarettes remain subject to federal regulatory over­ sight under the Labeling See The relevant question thus is not whether “petitioners will be prohib­ ited from selling as ‘light’ or ‘low tar’ only those cigarettes that are not actually light and do not actually deliver less tar and nicotine.” Ante, at 12, n. 10. Rather, the issue is whether the Labeling Act allows regulators and juries to decide, on a state-by-state basis, whether petitioners’ light and low-tar descriptors were in fact fraudulent, or instead whether charged the Federal Government with reaching a comprehensive judgment with respect to this question. Congress chose a uniform federal standard. Under the Labeling Act, Congress “establish[ed] a comprehensive Federal Program to deal with cigarette labeling and ad­ vertising,” 15 U.S. C. so that “commerce and the national economy may not [be] impeded by diverse, nonuniform, and confusing cigarette labeling and advertis­ ing regulations with respect to any relationship between smoking and health,” The majority’s dis­ torted interpretation of defeats this express congres­ sional purpose, opening the door to an untold number of deceptive-practices lawsuits across the country. The question whether marketing a light cigarette is “ ‘misrep­ resentative’ ” in light of compensatory behavior “would almost certainly be answered differently from State to State.” 505 U. S., (opinion of —————— advertising. 4 The majority contends that the relatively constrained enforcement power of the Federal Trade Commission (FTC) in 1970 undermines any argument that Congress intended the Labeling Act to prevent States from regulating deceptive advertising and marketing of cigarettes. Ante, at 8, n. 6. I am unwilling to rely on the majority’s perception of the relative power of the FTC in 1970 to ignore Congress’ stated pur­ pose in enacting the Labeling Act and the plain meaning of the Act’s express pre-emption provision. Cite as: 555 U. S. (2008) 19 THOMAS, J., dissenting SCALIA, J.). This will inevitably result in the nonuniform imposition of liability for the marketing of light and/or low-tar cigarettes—the precise problem that Congress intended to remedy. In light of these serious flaws in the majority’s ap­ proach, even if the plurality opinion were bind­ ing precedent, the “should not hesitate to allow our precedent to yield to the true meaning of an Act of Con­ gress when our statutory precedent is ‘unworkable’ or ‘badly reasoned.’ ” (THOMAS, J., dissenting) (THOMAS, J., concurring in judgment), in turn quoting 501 U.S., at (some internal quotation marks omitted)). Where, as here, there is “confusion following a splintered decision,” that “is itself a reason for reexamining that decision.” When a decision of this has failed to properly interpret a statute, we should not “place on the shoulders of Congress the burden of the ’s own error.” Girouard v. United States, 328 U.S. 61, 69–70 (1946).5 III Applying the proper test—i.e., whether a jury verdict on respondents’ claims would “impos[e] an obligation” on the cigarette manufacturer “because of the effect of smoking upon health,” (SCALIA, J., concur­ ring in judgment in part and dissenting in part), respon­ dents’ state-law claims are expressly pre-empted by —————— 5 The United States, in its amicus brief and at oral argument, con­ spicuously declined to address express pre-emption or defend the opinion’s reasoning. See Brief for United States as Amicus Curiae 14–33. Instead, it addressed only the question of implied pre­ emption, an issue I do not reach because of my resolution of the ques­ tion on express pre-emption. 20 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting of the Labeling Respondents, longtime smokers of Marlboro Lights, claim that they have suffered an injury as a result of petitioners’ decision to advertise these ciga­ rettes as “light” and/or “low-tar and low nicotine products.” –145. They claim that petitioners marketed their cigarettes as “light” and/or “low-tar and low-nicotine products” despite knowledge that light­ cigarette smokers would engage in compensatory behavior causing them to inhale at least as much tar and nicotine as smokers of regular cigarettes. Respondents thus allege that they were misled into thinking that they were gaining a health advantage by smoking the light ciga­ rettes, ib and, as a result, petitioners’ conduct was an “unfair or deceptive act or practice” under the MUTPA. Me. Rev. Stat. Ann., Tit. 5, ; Respondents’ claims seek to impose liability on petition­ ers because of the effect that smoking light cigarettes had on their health. The alleged misrepresentation here—that “light” and “low-tar” cigarettes are not as healthy as ad­ vertised—is actionable only because of the effect that smoking light and low-tar cigarettes had on respondents’ health. Otherwise, any alleged misrepresentation about the effect of the cigarettes on health would be immaterial for purposes of the MUTPA and would not be the source of the injuries that provided the impetus for the class-action lawsuit. See ME 28, A.2d 200, 206 (“An act or practice is deceptive [under the MUTPA] if it is a material representation, omission, act or practice that is likely to mislead consumers acting rea­ sonably under the circumstances” (emphasis added)). Therefore, with this suit, respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the “light” or “low-tar” descrip­ tors. This is exactly the type of lawsuit that is pre-empted by the Labeling Cf. Rowe, 552 U. S., at (slip op., Cite as: 555 U. S. (2008) 21 THOMAS, J., dissenting at 6) (finding pre-emption of a Maine regulation of ship­ ping of tobacco products where “[t]he Maine law pro­ duces the very effect that the federal law sought to avoid”). Because the proper test for pre-emption is to look at the factual basis of a complaint to determine if a claim im­ poses a requirement based on smoking and health, there is no meaningful distinction to be drawn in this case between common-law failure-to-warn claims and claims under the MUTPA.6 As the majority readily admits, both types of claims impose duties with respect to the same conduct— i.e., the marketing of “light,” “low-tar,” and “low-nicotine” cigarettes. See ante, at 11, n. 9. If the claims arise from identical conduct, the claims impose the same requirement or prohibition with respect to that conduct. And when that allegedly wrongful conduct involves misleading statements about the health effects of smoking a particu­ lar brand of cigarette, the liability and resulting require­ ment or prohibition are, by definition, based on smoking and health. Finally, at oral argument, respondents argued that their claims do not impose requirements based on smoking and health because the damages they seek to recover are not —————— 6 The majority’s observation that no warning-neutralization claim is at issue in this case, ante, at 11 n. 9, misses the point. The principal weakness in the plurality’s logic is not its distinction between claims for warning neutralization and claims for fraud. It is the fact that the predicate duty underlying New Jersey’s products liability law, from which the majority now claims the warning-neutralization claim derived, see ante, at 11, n. 8, was no more specific to smoking and health than the predicate duty underlying the fraud claim, see Cipol –553 (opinion of SCALIA, J.) (“Each duty tran­ scends the relationship between the cigarette companies and cigarette smokers; neither duty was specifically crafted with an eye toward ‘smoking and health’ ”); ; see also Thus, the products-liability and the fraud claims must stand or fall together. The majority’s refusal to address the logical inconsistency of its approach remains as glaring today as it was in 22 ALTRIA GROUP, INC. v. GOOD THOMAS, J., dissenting based on the effect of smoking on their health; rather, respondents are “asking for the difference in value between a product [they] thought [they] were buying and a product [they] actually bought.” Tr. of Oral Arg. 29. But the requirement or prohibition covered by is created by the imposition of liability for particular conduct—here, the way in which petitioners marketed “light” and “low­ tar,” and “low-nicotine” cigarettes—not by the manner in which respondents have chosen to measure their damages. No matter how respondents characterize their damages claim, they have not been injured for purposes of the MUTPA, and thus cannot recover, unless their decision to purchase the cigarettes had a negative effect on their health. In any event, respondents sought “such injunctive relief as may be appropriate” in this App. 42a. The MUTPA specifically authorizes “other equitable relief, including an injunction,” to remedy unfair or deceptive trade practices. Me. Rev. Stat. Ann., Tit. 5, (West 2002). And a court-crafted injunction prohibiting petition­ ers from marketing light cigarettes would be no less a requirement or prohibition than the regulations found to be pre-empted in Reilly. In the end, no matter what form the remedy takes, the liability with respect to the specific claim still creates the requirement or prohibition. When that liability is necessarily premised on the effects of smoking on health, as respondents’ claims are here, the civil action is pre-empted by of the Labeling IV The today elects to convert the plural­ ity opinion into binding law, notwithstanding its weak­ ened doctrinal foundation, its atextual construction of the statute, and the lower courts’ inability to apply its meth­ odology. The resulting confusion about the nature of a claim’s “predicate duty” and inevitable disagreement in Cite as: 555 U. S. (2008) 23 THOMAS, J., dissenting the lower courts as to what type of representations are “material” and “misleading” will have the perverse effect of increasing the nonuniformity of state regulation of cigarette advertising, the exact problem that Congress intended to remedy. It may even force us to yet again revisit the ’s interpretation of the Labeling Because I believe that respondents’ claims are pre­ empted under of the Labeling Act, I respectfully dissent

Justice Kennedy

majority

Roper v. Simmons

2005-03-01

https://www.courtlistener.com/opinion/137749/roper-v-simmons/

https://www.courtlistener.com/api/rest/v3/clusters/137749/

2004-024

This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older *556 than 15 but younger than 18 when he committed a capital crime. In Stanford v. Kentucky, 492 U.S. 361 (1989), a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question. I At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors. The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her. Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad *557 trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman "because the bitch seen my face." The next day, after receiving information of Simmons' involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. They read him his Miranda rights. Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of interrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene. The State charged Simmons with burglary, kidnaping, stealing, and murder in the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri's juvenile court system. See Mo. Rev. Stat. §§ 211.021 (2000) and 211.031 (Supp. 2003). He was tried as an adult. At trial the State introduced Simmons' confession and the videotaped reenactment of the crime, along with testimony that Simmons discussed the crime in advance and bragged about it later. The defense called no witnesses in the guilt phase. The jury having returned a verdict of murder, the trial proceeded to the penalty phase. The State sought the death penalty. As aggravating factors, the State submitted that the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant; and involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman. *558 The State called Shirley Crook's husband, daughter, and two sisters, who presented moving evidence of the devastation her death had brought to their lives. In mitigation Simmons' attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons' mother, father, two younger half brothers, a neighbor, and a friend took the stand to tell the jurors of the close relationships they had formed with Simmons and to plead for mercy on his behalf. Simmons' mother, in particular, testified to the responsibility Simmons demonstrated in taking care of his two younger half brothers and of his grandmother and to his capacity to show love for them. During closing arguments, both the prosecutor and defense counsel addressed Simmons' age, which the trial judge had instructed the jurors they could consider as a mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons' age cannot drink, serve on juries, or even see certain movies, because "the legislatures have wisely decided that individuals of a certain age aren't responsible enough." Defense counsel argued that Simmons' age should make "a huge difference to [the jurors] in deciding just exactly what sort of punishment to make." In rebuttal, the prosecutor gave the following response: "Age, he says. Think about age. Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." The jury recommended the death penalty after finding the State had proved each of the three aggravating factors submitted to it. Accepting the jury's recommendation, the trial judge imposed the death penalty. Simmons obtained new counsel, who moved in the trial court to set aside the conviction and sentence. One argument was that Simmons had received ineffective assistance at trial. To support this contention, the new counsel called *559 as witnesses Simmons' trial attorney, Simmons' friends and neighbors, and clinical psychologists who had evaluated him. Part of the submission was that Simmons was "very immature," "very impulsive," and "very susceptible to being manipulated or influenced." The experts testified about Simmons' background including a difficult home environment and dramatic changes in behavior, accompanied by poor school performance in adolescence. Simmons was absent from home for long periods, spending time using alcohol and drugs with other teenagers or young adults. The contention by Simmons' postconviction counsel was that these matters should have been established in the sentencing proceeding. The trial court found no constitutional violation by reason of ineffective assistance of counsel and denied the motion for postconviction relief. In a consolidated appeal from Simmons' conviction and sentence, and from the denial of post-conviction relief, the Missouri Supreme Court affirmed. State v. Simmons, 944 S.W.2d 165, 169 (en banc), cert. denied, 522 U.S. 953 (1997). The federal courts denied Simmons' petition for a writ of habeas corpus. Simmons v. Bowersox, 235 F.3d 1124, 1127 (CA8), cert. denied, 534 U.S. 924 (2001). After these proceedings in Simmons' case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia, 536 U.S. 304 (2002). Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court agreed. State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) (en banc). It held that since Stanford, "a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, *560 that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade." 112 S.W.3d, at 399. On this reasoning it set aside Simmons' death sentence and resentenced him to "life imprisonment without eligibility for probation, parole, or release except by act of the Governor." Id., at 413. We granted certiorari, 540 U.S. 1160 (2004), and now affirm. II The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The provision is applicable to the States through the Fourteenth Amendment. Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam); Robinson v. California, 370 U.S. 660, 666-667 (1962); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463 (1947) (plurality opinion). As the Court explained in Atkins, the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic "`precept of justice that punishment for crime should be graduated and proportioned to [the] offense.'" 536 U.S., at 311 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons. The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this *561 framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion). In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court determined that our standards of decency do not permit the execution of any offender under the age of 16 at the time of the crime. Id., at 818-838 (opinion of STEVENS, J., joined by Brennan, Marshall, and Blackmun, JJ.). The plurality opinion explained that no death penalty State that had given express consideration to a minimum age for the death penalty had set the age lower than 16. Id., at 826-829. The plurality also observed that "[t]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community." Id., at 830. The opinion further noted that juries imposed the death penalty on offenders under 16 with exceeding rarity; the last execution of an offender for a crime committed under the age of 16 had been carried out in 1948, 40 years prior. Id., at 832-833. Bringing its independent judgment to bear on the permissibility of the death penalty for a 15-year-old offender, the Thompson plurality stressed that "[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." Id., at 835. According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in "the kind of cost-benefit analysis that *562 attaches any weight to the possibility of execution" made the death penalty ineffective as a means of deterrence. Id., at 836-838. With JUSTICE O'CONNOR concurring in the judgment on narrower grounds, id., at 848-859, the Court set aside the death sentence that had been imposed on the 15-year-old offender. The next year, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court, over a dissenting opinion joined by four Justices, referred to contemporary standards of decency in this country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court noted that 22 of the 37 death penalty States permitted the death penalty for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court's view, indicated there was no national consensus "sufficient to label a particular punishment cruel and unusual." Id., at 370-371. A plurality of the Court also "emphatically reject[ed]" the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death penalty. Id., at 377-378 (opinion of SCALIA, J., joined by REHNQUIST, C. J., and White and KENNEDY, JJ.); see also id., at 382 (O'CONNOR, J., concurring in part and concurring in judgment) (criticizing the plurality's refusal "to judge whether the `"nexus between the punishment imposed and the defendant's blameworthiness"' is proportional"). The same day the Court decided Stanford, it held that the Eighth Amendment did not mandate a categorical exemption from the death penalty for the mentally retarded. Penry v. Lynaugh, 492 U.S. 302 (1989). In reaching this conclusion it stressed that only two States had enacted laws banning the imposition of the death penalty on a mentally retarded person convicted of a capital offense. Id., at 334. According to the Court, "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, *563 [did] not provide sufficient evidence at present of a national consensus." Ibid. Three Terms ago the subject was reconsidered in Atkins. We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court noted objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. When Atkins was decided only a minority of States permitted the practice, and even in those States it was rare. 536 U.S., at 314-315. On the basis of these indicia the Court determined that executing mentally retarded offenders "has become truly unusual, and it is fair to say that a national consensus has developed against it." Id., at 316. The inquiry into our society's evolving standards of decency did not end there. The Atkins Court neither repeated nor relied upon the statement in Stanford that the Court's independent judgment has no bearing on the acceptability of a particular punishment under the Eighth Amendment. Instead we returned to the rule, established in decisions predating Stanford, that "`the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" 536 U.S., at 312 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion)). Mental retardation, the Court said, diminishes personal culpability even if the offender can distinguish right from wrong. 536 U.S., at 318. The impairments of mentally retarded offenders make it less defensible to impose the death penalty as retribution for past crimes and less likely that the death penalty will have a real deterrent effect. Id., at 319-320. Based on these considerations and on the finding of national consensus against executing the mentally retarded, the Court ruled that the death penalty constitutes an excessive sanction for the entire category of mentally retarded offenders, *564 and that the Eighth Amendment "`places a substantive restriction on the State's power to take the life' of a mentally retarded offender." Id., at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)). Just as the Atkins Court reconsidered the issue decided in Penry, we now reconsider the issue decided in Stanford. The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. These data give us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles. III A The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded. When Atkins was decided, 30 States prohibited the death penalty for the mentally retarded. This number comprised 12 that had abandoned the death penalty altogether, and 18 that maintained it but excluded the mentally retarded from its reach. 536 U.S., at 313-315. By a similar calculation in this case, 30 States prohibit the juvenile death penalty, comprising 12 that have rejected the death penalty altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. See Appendix A, infra. Atkins emphasized that even in the 20 States without formal prohibition, the practice of executing the mentally retarded was infrequent. Since Penry, only five States had executed offenders known to have an IQ under 70. 536 U.S., at 316. In the present case, too, even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent. Since Stanford, six States have executed prisoners for crimes committed as juveniles. *565 In the past 10 years, only three have done so: Oklahoma, Texas, and Virginia. See V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, 2004, No. 76, p. 4 (2005), available at http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf (last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in Clerk of Court's case file). In December 2003 the Governor of Kentucky decided to spare the life of Kevin Stanford, and commuted his sentence to one of life imprisonment without parole, with the declaration that "`[w]e ought not be executing people who, legally, were children.'" Lexington Herald Leader, Dec. 9, 2003, p. B3, 2003 WL 65043346. By this act the Governor ensured Kentucky would not add itself to the list of States that have executed juveniles within the last 10 years even by the execution of the very defendant whose death sentence the Court had upheld in Stanford v. Kentucky. There is, to be sure, at least one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of abolition of the death penalty for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard Atkins. By contrast, the rate of change in reducing the incidence of the juvenile death penalty, or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death penalty at the time of Stanford have abandoned it in the intervening 15 years — four through legislative enactments and one through judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 440, 858 P.2d 1092 (1993) (en banc). Though less dramatic than the change from Penry to Atkins ("telling," to borrow the word Atkins used to describe this difference, 536 U.S., at 315, n. 18), we still consider the change from Stanford to this case to be significant. As noted in Atkins, with respect to the States that had abandoned *566 the death penalty for the mentally retarded since Penry, "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change." 536 U.S., at 315. In particular we found it significant that, in the wake of Penry, no State that had already prohibited the execution of the mentally retarded had passed legislation to reinstate the penalty. 536 U.S., at 315-316. The number of States that have abandoned capital punishment for juvenile offenders since Stanford is smaller than the number of States that abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since Stanford, no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death penalty, carries special force in light of the general popularity of anticrime legislation, Atkins, supra, at 315, and in light of the particular trend in recent years toward cracking down on juvenile crime in other respects, see H. Snyder & M. Sickmund, National Center for Juvenile Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept. 1999); Scott & Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 (1997). Any difference between this case and Atkins with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change. The slower pace of abolition of the juvenile death penalty over the past 15 years, moreover, may have a simple explanation. When we heard Penry, only two death penalty States had already prohibited the execution of the mentally retarded. When we heard Stanford, by contrast, 12 death penalty States had already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age *567 gained wide recognition earlier than the impropriety of executing the mentally retarded. In the words of the Missouri Supreme Court: "It would be the ultimate in irony if the very fact that the inappropriateness of the death penalty for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred." 112 S.W.3d, at 408, n. 10. Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it. Petitioner supports this position with, in particular, the observation that when the Senate ratified the International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171 (entered into force Mar. 23, 1976), it did so subject to the President's proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles. Brief for Petitioner 27. This reservation at best provides only faint support for petitioner's argument. First, the reservation was passed in 1992; since then, five States have abandoned capital punishment for juveniles. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death penalty should not extend to juveniles. See 18 U.S. C. § 3591. The reservation to Article 6(5) of the ICCPR provides minimal evidence that there is not now a national consensus against juvenile executions. As in Atkins, the objective indicia of consensus in this case — the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U.S., at 316. *568 B A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. Because the death penalty is the most severe punishment, the Eighth Amendment applies to it with special force. Thompson, 487 U. S., at 856 (O'CONNOR, J., concurring in judgment). Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." Atkins, supra, at 319. This principle is implemented throughout the capital sentencing process. States must give narrow and precise definition to the aggravating factors that can result in a capital sentence. Godfrey v. Georgia, 446 U.S. 420, 428-429 (1980) (plurality opinion). In any capital case a defendant has wide latitude to raise as a mitigating factor "any aspect of [his or her] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 110-112 (1982); see also Johnson v. Texas, 509 U.S. 350, 359-362 (1993) (summarizing the Court's jurisprudence after Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), with respect to a sentencer's consideration of aggravating and mitigating factors). There are a number of crimes that beyond question are severe in absolute terms, yet the death penalty may not be imposed for their commission. Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult woman); Enmund v. Florida, 458 U.S. 782 (1982) (felony murder where defendant did not kill, attempt to kill, or intend to kill). The death penalty may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime. Thompson v. Oklahoma, supra; Ford v. Wainwright, 477 U.S. 399 (1986); Atkins, supra. These rules vindicate the underlying principle *569 that the death penalty is reserved for a narrow category of crimes and offenders. Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions." Johnson, supra, at 367; see also Eddings, supra, at 115-116 ("Even the normal 16-year-old customarily lacks the maturity of an adult"). It has been noted that "adolescents are overrepresented statistically in virtually every category of reckless behavior." Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. See Appendixes B-D, infra. The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. Eddings, supra, at 115 ("[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage"). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003) (hereinafter Steinberg & Scott) ("[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting"). *570 The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Thompson, supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See Stanford, 492 U. S., at 395 (Brennan, J., dissenting). The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." Johnson, supra, at 368; see also Steinberg & Scott 1014 ("For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood"). In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles *571 below that age. 487 U.S., at 833-838. We conclude the same reasoning applies to all juvenile offenders under 18. Once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death penalty apply to them with lesser force than to adults. We have held there are two distinct social purposes served by the death penalty: "`retribution and deterrence of capital crimes by prospective offenders.'" Atkins, 536 U. S., at 319 (quoting Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.)). As for retribution, we remarked in Atkins that "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." 536 U.S., at 319. The same conclusions follow from the lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. As for deterrence, it is unclear whether the death penalty has a significant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument. Tr. of Oral Arg. 48. In general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes, see Harmelin v. Michigan, 501 U.S. 957, 998-999 (1991) (KENNEDY, J., concurring in part and concurring in judgment). Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in *572 Thompson, "[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent." 487 U.S., at 837. To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. In concluding that neither retribution nor deterrence provides adequate justification for imposing the death penalty on juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile offenders have committed. See Brief for Alabama et al. as Amici Curiae. Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is the linchpin of one contention pressed by petitioner and his amici. They assert that even assuming the truth of the observations we have made about juveniles' diminished culpability in general, jurors nonetheless should be allowed to consider mitigating arguments related to youth on a case-by-case basis, and in some cases to impose the death penalty if justified. A central feature of death penalty sentencing is a particular assessment of the circumstances of the crime and the characteristics of the offender. The system is designed to consider both aggravating and mitigating circumstances, including youth, in every case. Given this Court's own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring imposition of the death penalty on any offender under 18 years of age. We disagree. The differences between juvenile and adult offenders are too marked and well understood to risk allowing *573 a youthful person to receive the death penalty despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we noted above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. Supra, at 558. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014-1016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701-706 (4th ed. text rev. 2000); see also Steinberg & Scott 1015. If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation — that a juvenile offender merits the death penalty. When a juvenile offender commits a heinous crime, the State can exact forfeiture of some *574 of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. These considerations mean Stanford v. Kentucky should be deemed no longer controlling on this issue. To the extent Stanford was based on review of the objective indicia of consensus that obtained in 1989, 492 U.S., at 370-371, it suffices to note that those indicia have changed. Supra, at 564-567. It should be observed, furthermore, that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty, 492 U.S., at 370, n. 2; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles. Last, to the extent Stanford was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders, id., at 377-378 (plurality opinion), it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions, Thompson, 487 U. S., at 833-838 *575 (plurality opinion); Enmund, 458 U. S., at 797; Coker, 433 U. S., at 597 (plurality opinion). It is also inconsistent with the premises of our recent decision in Atkins. 536 U. S., at 312-313, 317-321. In holding that the death penalty cannot be imposed upon juvenile offenders, we take into account the circumstance that some States have relied on Stanford in seeking the death penalty against juvenile offenders. This consideration, however, does not outweigh our conclusion that Stanford should no longer control in those few pending cases or in those yet to arise. IV Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." 356 U.S., at 102-103 (plurality opinion) ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime"); see also Atkins, supra, at 317, n. 21 (recognizing that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved"); Thompson, supra, at 830-831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community," and observing that "[w]e have previously recognized the relevance of the views of the international community *576 in determining whether a punishment is cruel and unusual"); Enmund, supra, at 796-797, n. 22 (observing that "the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe"); Coker, supra, at 596, n. 10 (plurality opinion) ("It is ... not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue"). As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 567); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/ 24.9/49 (1990) (entered into force Nov. 29, 1999) (same). *577 Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty. Though the international covenants prohibiting the juvenile death penalty are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death penalty before these covenants came into being. The United Kingdom's experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: "[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusual Punishments inflicted." 1 W. & M., ch. 2, § 10, in 3 Eng. Stat. at Large 441 (1770); see also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has abolished the death penalty in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death penalty; and it abolished that penalty as a separate matter. In 1930 an official committee recommended that the minimum age for execution be raised to 21. House of Commons Report from the Select Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the Children and Young Person's Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense. In the 56 years that have passed *578 since the United Kingdom abolished the juvenile death penalty, the weight of authority against it there, and in the international community, has become well established. It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. * * * The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. The judgment *579 of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed. It is so ordered. APPENDIX A TO OPINION OF THE COURT I. STATES THAT PERMIT THE IMPOSITION OF THE DEATH PENALTY ON JUVENILES Alabama Ala. Code § 13A-6-2(c) (West 2004) (no express minimum age) Arizona Ariz. Rev. Stat. Ann. § 13-703(A) (West Supp. 2004) (same) Arkansas Ark. Code Ann. § 5-4-615 (Michie 1997) (same) Delaware Del. Code Ann., Tit. 11 (Lexis 1995) (same) Florida Fla. Stat. § 985.225(1) (2003) (same) Georgia Ga. Code Ann. § 17-9-3 (Lexis 2004) (same) Idaho Idaho Code § 18-4004 (Michie 2004) (same) Kentucky Ky. Rev. Stat. Ann. § 640.040(1) (Lexis 1999) (minimum age of 16) Louisiana La. Stat. Ann. § 14:30(C) (West Supp. 2005) (no express minimum age) Mississippi Miss. Code Ann. § 97-3-21 (Lexis 2000) (same) Missouri Mo. Rev. Stat. Ann. § 565.020 (2000) (minimum age of 16) Nevada Nev. Rev. Stat. § 176.025 (2003) (minimum age of 16) New Hampshire N. H. Rev. Stat. Ann. § 630:1(V) (West 1996) (minimum age of 17) North Carolina N. C. Gen. Stat. § 14-17 (Lexis 2003) (minimum age of 17, except that those under 17 who commit murder while serving a prison sentence for a previous murder may receive the death penalty) Oklahoma Okla. Stat. Ann., Tit. 21, § 701.10 (West 2002) (no express minimum age) Pennsylvania 18 Pa. Cons. Stat. § 1102 (2002) (same) South Carolina S. C. Code Ann. § 16-3-20 (West Supp. 2004 and main ed.) (same) Texas Tex. Penal Code Ann. § 8.07(c) (West Supp. 2004-2005) (minimum age of 17) Utah Utah Code Ann. § 76-3-206(1) (Lexis 2003) (no express minimum age) *580 Virginia Va. Code Ann. § 18.2-10(a) (Lexis 2004) (minimum age of 16) II. STATES THAT RETAIN THE DEATH PENALTY, BUT SET THE MINIMUM AGE AT 18 California Cal. Penal Code Ann. § 190.5 (West 1999) Colorado Colo. Rev. Stat. § 18-1.4-102(1)(a) (Lexis 2004) Connecticut Conn. Gen. Stat. § 53a-46a(h) (2005) Illinois Ill. Comp. Stat., ch. 720, § 5/9-1(b) (West Supp. 2003) Indiana Ind. Code Ann. § 35-50-2-3 (2004) Kansas Kan. Stat. Ann. § 21-4622 (1995) Maryland Md. Crim. Law Code Ann. § 2-202(b)(2)(i) (Lexis 2002) Montana Mont. Code Ann. § 45-5-102 (2003) Nebraska Neb. Rev. Stat. § 28-105.01(1) (Supp. 2004) New Jersey N. J. Stat. Ann. § 2C:11-3(g) (West Supp. 2003) New Mexico N. M. Stat. Ann. § 31-18-14(A) (2000) New York N. Y. Penal Law Ann. § 125.27 (West 2004) Ohio Ohio Rev. Code Ann. § 2929.02(A) (Lexis 2003) Oregon Ore. Rev. Stat. §§ 161.620, 137.707(2) (2003) South Dakota S. D. Codified Laws § 23A-27A-42 (West 2004) Tennessee Tenn. Code Ann. § 37-1-134(a)(1) (1996) Washington Minimum age of 18 established by judicial decision. State v. Furman, 122 Wash. 2d 440, 858 P.2d 1092 (1993) Wyoming Wyo. Stat. § 6-2-101(b) (Lexis Supp. 2004) * * * During the past year, decisions by the highest courts of Kansas and New York invalidated provisions in those States' death penalty statutes. State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004) (invalidating provision that required imposition of the death penalty if aggravating and mitigating circumstances were found to be in equal balance); People v. LaValle, 3 N.Y. 3d 88, 817 N.E.2d 341 (2004) (invalidating mandatory requirement to instruct the jury that, in the case of jury deadlock as to the appropriate sentence in a capital case, the defendant would receive a sentence of life imprisonment with parole eligibility after serving a minimum of 20 to 25 years). Due to these decisions, it would appear that in these States the death penalty remains on the books, but that as a practical matter it might not be imposed on anyone until there is a change of course in these decisions, or until the respective state legislatures remedy the problems the courts have identified. Marsh, supra, at 524-526, 544-546, 102 P.3d, at 452, 464; LaValle, supra, at 99, 817 N. E 2d, at 344. *581 III. STATES WITHOUT THE DEATH PENALTY Alaska Hawaii Iowa Maine Massachusetts Michigan Minnesota North Dakota Rhode Island Vermont West Virginia Wisconsin APPENDIX B TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE TO VOTE STATE AGE STATUTE Alabama 18 Ala. Const., Amdt. No. 579 Alaska 18 Alaska Const., Art. V, § 1; Alaska Stat. § 15-05.010 (Lexis 2004) Arizona 18 Ariz. Const., Art. VII, § 2; Ariz. Rev. Stat. § 16-101 (West 2001) Arkansas 18 Ark. Code Ann. § 9-25-101 (Lexis 2002) California 18 Cal. Const., Art. 2, § 2 Colorado 18 Colo. Rev. Stat. § 1-2-101 (Lexis 2004) Connecticut 18 Conn. Const., Art. 6, § 1; Conn. Gen. Stat. § 9-12 (2005) Delaware 18 Del. Code Ann., Tit. 15, § 1701 (Michie Supp. 2004) District of 18 Dall. C. Code § 1-1001.02(2)(B) (West Supp. 2004) Columbia Florida 18 Fla. Stat. ch. 97.041 (2003) Georgia 18 Ga. Const., Art. 2, § 1, ¶ 2; Ga. Code Ann. § 21-2-216 (Lexis 2003) Hawaii Haw. Const., Art. II, § 1; Haw. Rev. Stat. § 11-12 (1995) Idaho 18 Idaho Code § 34-402 (Michie 2001) Illinois 18 Ill. Const., Art. III, § 1; Ill. Comp. Stat. ch. 10, § 5/3-1 (West 2002) Indiana 18 Ind. Code Ann. § 3-7-13-1 (2004) Iowa 18 Iowa Code § 48A.5 (2003) *582 Kansas 18 Kan. Const., Art. 5, § 1 Kentucky 18 Ky. Const., § 145 Louisiana 18 La. Const., Art. I, § 10; La. Rev. Stat. Ann. § 18:101 (West 2004) Maine 18 Me. Const., Art. II, § 1 (West Supp. 2004); Me. Rev. Stat. Ann., Tit. 21-A, §§ 111, 111-A (West 1993 and Supp. 2004) Maryland 18 Md. Elec. Law Code Ann. § 3-102 (Lexis 2002) Massachusetts 18 Mass. Gen. Laws Ann., ch. 51, § 1 (West Supp. 2005) Michigan 18 Mich. Comp. Laws Ann. § 168.492 (West 1989) Minnesota 18 Minn. Stat. § 201.014(1)(a) (2004) Mississippi 18 Miss. Const., Art. 12, § 241 Missouri 18 Mo. Const., Art. VIII, § 2 Montana 18 Mont. Const., Art. IV, § 2; Mont. Code Ann. § 13-1-111 (2003) Nebraska 18 Neb. Const., Art. VI, § 1; Neb. Rev. Stat. § 32-110 (2004) Nevada 18 Nev. Rev. Stat. § 293.485 (2003) New 18 N. H. Const., Pt. 1, Art. 11 Hampshire New Jersey 18 N. J. Const., Art. II, § 1, ¶ 3 New Mexico 18 [no provision other than U. S. Const., Amdt. XXVI] New York 18 N. Y. Elec. Law Ann. § 5-102 (West 1998) North 18 N. C. Gen. Stat. Ann. § 163-55 (Lexis 2003) Carolina North Dakota 18 N. D. Const., Art. II, § 1 Ohio 18 Ohio Const., Art. V, § 1; Ohio Rev. Code Ann. § 3503.01 (Anderson 1996) Oklahoma 18 Okla. Const., Art. III, § 1 Oregon 18 Ore. Const., Art. II, § 2 Pennsylvania 18 25 Pa. Cons. Stat. Ann. § 2811 (1994) Rhode Island 18 Rawle I. Gen. Laws § 17-1-3 (Lexis 2003) South 18 S. C. Code Ann. § 7-5-610 (West Supp. 2004) Carolina South Dakota 18 S. D. Const., Art. VII, § 2; S. D. Codified Laws Ann. § 12-3-1 (West 2004) Tennessee 18 Tenn. Code Ann. § 2-2-102 (2003) Texas 18 Tex. Elec. Code Ann. § 11.002 (West 2003) Utah 18 Utah Const., Art. IV, § 2; Utah Code Ann. § 20A-2-101 (Lexis 2003) Vermont 18 Vt. Stat. Ann., Tit. 17, § 2121 (Lexis 2002) *583 Virginia 18 Va. Const., Art. II, § 1 Washington 18 Wash. Const., Art. VI, § 1 West Virginia 18 W. Va. Code § 3-1-3 (Lexis 2002) Wisconsin 18 Wis. Const., Art. III, § 1; Wis. Stat. § 6.02 (West 2004) Wyoming 18 Wyo. Stat. Ann. §§ 22-1-102, 22-3-102 (Lexis Supp. 2004) * * * The Twenty-Sixth Amendment to the Constitution of the United States provides that "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age." APPENDIX C TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY SERVICE STATE AGE STATUTE Alabama 19 Ala. Code § 12-16-60(a)(1) (West 1995) Alaska 18 Alaska Stat. § 09.20.010(a)(3) (Lexis 2004) Arizona 18 Ariz. Rev. Stat. § 21-301(D) (West 2002) Arkansas 18 Ark. Code Ann. §§ 16-31-101, 16-32-302 (Lexis Supp. 2003) California 18 Cal. Civ. Proc. § 203(a)(2) (West Supp. 2005) Colorado 18 Colo. Rev. Stat. § 13-71-105(2)(a) (Lexis 2004) Connecticut 18 Conn. Gen. Stat. § 51-217(a) (2005) Delaware 18 Del. Code Ann., Tit. 10, § 4509(b)(2) (Michie 1999) District of 18 Dall. C. Code § 11-1906(b)(1)(C) (West 2001) Columbia Florida 18 Fla. Stat. § 40.01 (2003) Georgia 18 Ga. Code Ann. §§ 15-12-60, 15-12-163 (Lexis 2001) Hawaii 18 Haw. Rev. Stat. § 612-4(a)(1) (Supp. 2004) Idaho 18 Idaho Code § 2-209(2)(a) (Michie 2004) Illinois 18 Ill. Comp. Stat., ch. 705, § 305/2 (West 2002) Indiana 18 Ind. Code § 33-28-4-8 (2004) Iowa 18 Iowa Code § 607A.4(1)(a) (2003) Kansas 18 Kan. Stat. Ann. § 43-156 (2000) (jurors must be qualified to be electors); Kan. Const., Art. 5, § 1 (person must be 18 to be qualified elector) *584 Kentucky 18 Ky. Rev. Stat. Ann. § 29A.080(2)(a) (Lexis Supp. 2004) Louisiana 18 La. Code Crim. Proc. Ann., Art. 401(A)(2) (West 2003) Maine 18 Me. Rev. Stat. Ann., Tit. 14, § 1211 (West 1980) Maryland 18 Md. Cts. & Jud. Proc. Code Ann. § 8-104 (Lexis 2002) Massachusetts 18 Mass. Gen. Laws Ann., ch. 234, § 1 (West 2000) (jurors must be qualified to vote); ch. 51, § 1 (West Supp. 2005) (person must be 18 to vote) Michigan 18 Mich. Comp. Laws Ann. § 600.1307a(1)(a) (West Supp. 2004) Minnesota 18 Minn. Dist. Ct. Rule 808(b)(2) (2004) Mississippi 21 Miss. Code Ann. § 13-5-1 (Lexis 2002) Missouri 21 Mo. Rev. Stat. § 494.425(1) (2000) Montana 18 Mont. Code Ann. § 3-15-301 (2003) Nebraska 19 Neb. Rev. Stat. § 25-1601 (Supp. 2004) Nevada 18 Nev. Rev. Stat. § 6.010 (2003) (juror must be qualified elector); § 293.485 (person must be 18 to vote) New 18 N. H. Rev. Stat. Ann. § 500-A:7-a(I) (Lexis Hampshire Supp. 2004) New Jersey 18 N. J. Stat. Ann. § 2B:20-1(a) (West 2004 Pamphlet) New Mexico 18 N. M. Stat. Ann. § 38-5-1 (1998) New York 18 N. Y. Jud. Law Ann. § 510(2) (West 2003) North 18 N. C. Gen. Stat. Ann. § 9-3 (Lexis 2003) Carolina North Dakota 18 N. D. Cent. Code § 27-09.1-08(2)(b) (Lexis Supp. 2003) Ohio 18 Ohio Rev. Code Ann. § 2313.42 (Anderson 2001) Oklahoma 18 Okla. Stat. Ann., Tit. 38, § 28 (West Supp. 2005) Rhode Island 18 Rawle I. Gen. Laws § 9-9-1.1(a)(2) (Lexis Supp. 2005) South 18 S. C. Code Ann. § 14-7-130 (West Supp. 2004) Carolina South Dakota 18 S. D. Codified Laws § 16-13-10 (2004) Tennessee 18 Tenn. Code Ann. § 22-1-101 (1994) Texas 18 Tex. Govt. Code Ann. § 62.102(1) (West 1998) Utah 18 Utah Code Ann. § 78-46-7(1)(b) (Lexis 2002) Vermont 18 Vt. Stat. Ann., Tit. 4, § 962(a)(1) (Lexis 1999); (jurors must have attained age of majority); Tit. 1, § 173 (Lexis 2003) (age of majority is 18) *585 Virginia 18 Va. Code Ann. § 8.01-337 (Lexis 2000) Washington 18 Wash. Rev. Code Ann. § 2.36.070 (West 2004) West Virginia 18 W. Va. Code § 52-1-8(b)(1) (Lexis 2000) Wisconsin 18 Wis. Stat. § 756.02 (West 2001) Wyoming 18 Wyo. Stat. Ann. § 1-11-101 (Lexis 2003) (jurors must be adults); § 14-1-101 (person becomes an adult at 18) APPENDIX D TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE FOR MARRIAGE WITHOUT PARENTAL OR JUDICIAL CONSENT STATE AGE STATUTE Alabama 18 Ala. Code § 30-1-5 (West Supp. 2004) Alaska 18 Alaska Stat. §§ 25.05.011, 25.05.171 (Lexis 2004) Arizona 18 Ariz. Rev. Stat. Ann. § 25-102 (West Supp. 2004) Arkansas 18 Ark. Code Ann. §§ 9-11-102, 9-11-208 (Lexis 2002) California 18 Cal. Fam. Code Ann. § 301 (West 2004) Colorado 18 Colo. Rev. Stat. Ann. § 14-2-106 (Lexis 2004) Connecticut 18 Conn. Gen. Stat. § 46b-30 (2005) Delaware 18 Del. Code Ann., Tit. 13, § 123 (Lexis 1999) District of 18 Dall. C. Code § 46-411 (West 2001) Columbia Florida 18 Fla. Stat. §§ 741.04, 741.0405 (2003) Georgia 16 Ga. Code Ann. §§ 19-3-2, 19-3-37 (Lexis 2004) (those under 18 must obtain parental consent unless female applicant is pregnant or both applicants are parents of a living child, in which case minimum age to marry without consent is 16) Hawaii 18 Haw. Rev. Stat. § 572-2 (1993) Idaho 18 Idaho Code § 32-202 (Michie 1996) Illinois 18 Ill. Comp. Stat., ch. 750, § 5/203 (West 2002) Indiana 18 Ind. Code Ann. §§ 31-11-1-4, 31-11-1-5, 31-11-2-1, 31-11-2-3 (2004) Iowa 18 Iowa Code § 595.2 (2003) Kansas 18 Kan. Stat. Ann. § 23-106 (Supp. 2003) Kentucky 18 Ky. Rev. Stat. Ann. §§ 402.020, 402.210 (Lexis 1999) Louisiana 18 La. Children's Code Ann., Arts. 1545, 1547 (West 2004) (minors may not marry without *586 consent); La. Civ. Code Ann., Art. 29 (West 1999) (age of majority is 18) Maine 18 Me. Rev. Stat. Ann., Tit. 19-A, § 652 (West 1998 and Supp. 2004) Maryland 16 Md. Fam. Law Code Ann. § 2-301 (Lexis 2004) (those under 18 must obtain parental consent unless female applicant can present proof of pregnancy or a child, in which case minimum age to marry without consent is 16) Massachusetts 18 Mass. Gen. Laws Ann., ch. 207, §§ 7, 24, 25 (West 1998) Michigan 18 Mich. Comp. Laws Ann. § 551.103 (West 2005) Minnesota 18 Minn. Stat. § 517.02 (2004) Mississippi 15/17 Miss. Code Ann. § 93-1-5 (Lexis 2004) (female applicants must be 15; male applicants must be 17) Missouri 18 Mo. Rev. Stat. § 451.090 (2000) Montana 18 Mont. Code Ann. §§ 40-1-202, 40-1-213 (2003) Nebraska 19 Neb. Rev. Stat. § 42-105 (2004) (minors must have parental consent to marry); § 43-2101 (defining "minor" as a person under 19) Nevada 18 Nev. Rev. Stat. § 122.020 (2003) New 18 N. H. Rev. Stat. Ann. § 457:5 (West 1992) Hampshire New Jersey 18 N. J. Stat. Ann. § 37:1-6 (West 2002) New Mexico 18 N. M. Stat. Ann. § 40-1-6 (1999) New York 18 N.Y. Dom. Rel. Law Ann. § 15 (West Supp. 2005) North 18 N. C. Gen. Stat. Ann. § 51-2 (Lexis 2003) Carolina North Dakota 18 N. D. Cent. Code § 14-03-02 (Lexis 2004) Ohio 18 Ohio Rev. Code Ann. § 3101.01 (2003) Oklahoma 18 Okla. Stat. Ann., Tit. 43, § 3 (West Supp. 2005) Oregon 18 Ore. Rev. Stat. § 106.060 (2003) Pennsylvania 18 23 Pa. Cons. Stat. § 1304 (1997) Rhode Island 18 Rawle I. Gen. Laws § 15-2-11 (Supp. 2004) South 18 S. C. Code Ann. § 20-1-250 (West Supp. 2004) Carolina South Dakota 18 S. D. Codified Laws § 25-1-9 (West 2004) Tennessee 18 Tenn. Code Ann. § 36-3-106 (1996) Texas 18 Tex. Fam. Code Ann. §§ 2.101-2.103 (West 1998) Utah 18 Utah Code Ann. § 30-1-9 (Lexis Supp. 2004) Vermont 18 Vt. Stat. Ann., Tit. 18, § 5142 (Lexis 2000) *587 Virginia 18 Va. Code Ann. §§ 20-45.1, 20-48, 20-49 (Lexis 2004) Washington 18 Wash. Rev. Code Ann. § 26.04.210 (West 2005) West Virginia 18 W. Va. Code § 48-2-301 (Lexis 2004) Wisconsin 18 Wis. Stat. § 765.02 (2001) Wyoming 18 Wyo. Stat. Ann.

This case requires us to address, for the second time in a decade and a half, whether it is permissible under the Eighth and Fourteenth Amendments to the Constitution of the United States to execute a juvenile offender who was older *556 than 15 but younger than 18 when he committed a capital crime. In a divided Court rejected the proposition that the Constitution bars capital punishment for juvenile offenders in this age group. We reconsider the question. I At the age of 17, when he was still a junior in high school, Christopher Simmons, the respondent here, committed murder. About nine months later, after he had turned 18, he was tried and sentenced to death. There is little doubt that Simmons was the instigator of the crime. Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he talked about his plan, discussing it for the most part with two friends, Charles Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could "get away with it" because they were minors. The three met at about 2 a.m. on the night of the murder, but Tessmer left before the other two set out. (The State later charged Tessmer with conspiracy, but dropped the charge in exchange for his testimony against Simmons.) Simmons and Benjamin entered the home of the victim, Shirley Crook, after reaching through an open window and unlocking the back door. Simmons turned on a hallway light. Awakened, Mrs. Crook called out, "Who's there?" In response Simmons entered Mrs. Crook's bedroom, where he recognized her from a previous car accident involving them both. Simmons later admitted this confirmed his resolve to murder her. Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs. Crook in her minivan and drove to a state park. They reinforced the bindings, covered her head with a towel, and walked her to a railroad *557 trestle spanning the Meramec River. There they tied her hands and feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge, drowning her in the waters below. By the afternoon of September 9, Steven Crook had returned home from an overnight trip, found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling friends he had killed a woman "because the bitch seen my face." The next day, after receiving information of Simmons' involvement, police arrested him at his high school and took him to the police station in Fenton, Missouri. They read him his Miranda rights. Simmons waived his right to an attorney and agreed to answer questions. After less than two hours of interrogation, Simmons confessed to the murder and agreed to perform a videotaped reenactment at the crime scene. The State charged Simmons with burglary, kidnaping, stealing, and murder in the first degree. As Simmons was 17 at the time of the crime, he was outside the criminal jurisdiction of Missouri's juvenile court system. See (2000) and 211.031 He was tried as an adult. At trial the State introduced Simmons' confession and the videotaped reenactment of the crime, along with testimony that Simmons discussed the crime in advance and bragged about it later. The defense called no witnesses in the guilt phase. The jury having returned a verdict of murder, the trial proceeded to the phase. The State sought the death As aggravating factors, the State submitted that the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding, interfering with, or preventing lawful arrest of the defendant; and involved depravity of mind and was outrageously and wantonly vile, horrible, and inhuman. *558 The State called Shirley Crook's husband, daughter, and two sisters, who presented moving evidence of the devastation her death had brought to their lives. In mitigation Simmons' attorneys first called an officer of the Missouri juvenile justice system, who testified that Simmons had no prior convictions and that no previous charges had been filed against him. Simmons' mother, father, two younger half brothers, a neighbor, and a friend took the stand to tell the jurors of the close relationships they had formed with Simmons and to plead for mercy on his behalf. Simmons' mother, in particular, testified to the responsibility Simmons demonstrated in taking care of his two younger half brothers and of his grandmother and to his capacity to show love for them. During closing arguments, both the prosecutor and defense counsel addressed Simmons' age, which the trial judge had instructed the jurors they could consider as a mitigating factor. Defense counsel reminded the jurors that juveniles of Simmons' age cannot drink, serve on juries, or even see certain movies, because "the legislatures have wisely decided that individuals of a certain age aren't responsible enough." Defense counsel argued that Simmons' age should make "a huge to [the jurors] in deciding just exactly what sort of punishment to make." In rebuttal, the prosecutor gave the following response: "Age, he says. Think about Seventeen years old. Isn't that scary? Doesn't that scare you? Mitigating? Quite the contrary I submit. Quite the contrary." The jury recommended the death after finding the State had proved each of the three aggravating factors submitted to it. Accepting the jury's recommendation, the trial judge imposed the death Simmons obtained new counsel, who moved in the trial court to set aside the conviction and sentence. One argument was that Simmons had received ineffective assistance at trial. To support this contention, the new counsel called *559 as witnesses Simmons' trial attorney, Simmons' friends and neighbors, and clinical psychologists who had evaluated him. Part of the submission was that Simmons was "very immature," "very impulsive," and "very susceptible to being manipulated or influenced." The experts testified about Simmons' background including a difficult home environment and dramatic changes in behavior, accompanied by poor school performance in adolescence. Simmons was absent from home for long periods, spending time using alcohol and drugs with other teenagers or young adults. The contention by Simmons' postconviction counsel was that these matters should have been established in the sentencing proceeding. The trial court found no constitutional violation by reason of ineffective assistance of counsel and denied the motion for postconviction relief. In a consolidated appeal from Simmons' conviction and sentence, and from the denial of post-conviction relief, the Missouri Supreme Court affirmed. cert. denied, The federal courts denied Simmons' petition for a writ of habeas corpus. (CA8), cert. denied, After these proceedings in Simmons' case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Simmons filed a new petition for state postconviction relief, arguing that the reasoning of established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed. The Missouri Supreme Court agreed. State ex rel. It held that since "a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, *560 that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death has become truly unusual over the last decade." On this reasoning it set aside Simmons' death sentence and resentenced him to "life imprisonment without eligibility for probation, parole, or release except by act of the Governor." We granted certiorari, and now affirm. II The Eighth Amendment provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The provision is applicable to the States through the Fourteenth Amendment. ; ; Louisiana ex rel. As the Court explained in the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions. The right flows from the basic "`precept of justice that punishment for crime should be graduated and proportioned to [the] offense.'" ). By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons. The prohibition against "cruel and unusual punishments," like other expansive language in the Constitution, must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this *561 framework we have established the propriety and affirmed the necessity of referring to "the evolving standards of decency that mark the progress of a maturing society" to determine which punishments are so disproportionate as to be cruel and unusual. In a plurality of the Court determined that our standards of decency do not permit the execution of any offender under the age of 16 at the time of the crime. The plurality opinion explained that no death State that had given express consideration to a minimum age for the death had set the age lower than 16. The plurality also observed that "[t]he conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community." The opinion further that juries imposed the death on offenders under 16 with exceeding rarity; the last execution of an offender for a crime committed under the age of 16 had been carried out in 1948, 40 years prior. Bringing its independent judgment to bear on the permissibility of the death for a 15-year-old offender, the plurality stressed that "[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult." According to the plurality, the lesser culpability of offenders under 16 made the death inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in "the kind of cost-benefit analysis that *562 attaches any weight to the possibility of execution" made the death ineffective as a means of deterrence. With JUSTICE O'CONNOR concurring in the judgment on narrower grounds, the Court set aside the death sentence that had been imposed on the 15-year-old offender. The next year, in the Court, over a dissenting opinion joined by four Justices, referred to contemporary standards of decency in this country and concluded the Eighth and Fourteenth Amendments did not proscribe the execution of juvenile offenders over 15 but under 18. The Court that 22 of the 37 death States permitted the death for 16-year-old offenders, and, among these 37 States, 25 permitted it for 17-year-old offenders. These numbers, in the Court's view, indicated there was no national consensus "sufficient to label a particular punishment cruel and unusual." A plurality of the Court also "emphatically reject[ed]" the suggestion that the Court should bring its own judgment to bear on the acceptability of the juvenile death ; see also (criticizing the plurality's refusal "to judge whether the `"nexus between the punishment imposed and the defendant's blameworthiness"' is proportional"). The same day the Court decided it held that the Eighth Amendment did not mandate a categorical exemption from the death for the mentally retarded. In reaching this conclusion it stressed that only two States had enacted laws banning the imposition of the death on a mentally retarded person convicted of a capital offense. According to the Court, "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, *563 [did] not provide sufficient evidence at present of a national consensus." Three Terms ago the subject was reconsidered in We held that standards of decency have evolved since Penry and now demonstrate that the execution of the mentally retarded is cruel and unusual punishment. The Court objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions of the mentally retarded. When was decided only a minority of States permitted the practice, and even in those States it was rare. -315. On the basis of these indicia the Court determined that executing mentally retarded offenders "has become truly unusual, and it is fair to say that a national consensus has developed against it." The inquiry into our society's evolving standards of decency did not end there. The Court neither repeated nor relied upon the statement in that the Court's independent judgment has no bearing on the acceptability of a particular punishment under the Eighth Amendment. Instead we returned to the rule, established in decisions predating that "`the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death under the Eighth Amendment.'" ). Mental retardation, the Court said, diminishes personal culpability even if the offender can distinguish right from The impairments of mentally retarded offenders make it less defensible to impose the death as retribution for past crimes and less likely that the death will have a real deterrent effect. Based on these considerations and on the finding of national consensus against executing the mentally retarded, the Court ruled that the death constitutes an excessive sanction for the entire category of mentally retarded offenders, *564 and that the Eighth Amendment "`places a substantive restriction on the State's power to take the life' of a mentally retarded offender." ). Just as the Court reconsidered the issue decided in Penry, we now reconsider the issue decided in The beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. These data give us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death is a disproportionate punishment for juveniles. III A The evidence of national consensus against the death for juveniles is similar, and in some respects parallel, to the evidence held sufficient to demonstrate a national consensus against the death for the mentally retarded. When was decided, 30 States prohibited the death for the mentally retarded. This number comprised 12 that had abandoned the death altogether, and 18 that maintained it but excluded the mentally retarded from its reach. -315. By a similar calculation in this case, 30 States prohibit the juvenile death comprising 12 that have rejected the death altogether and 18 that maintain it but, by express provision or judicial interpretation, exclude juveniles from its reach. See Appendix A, infra. emphasized that even in the 20 States without formal prohibition, the practice of executing the mentally retarded was infrequent. Since Penry, only five States had executed offenders known to have an IQ under 536 U.S., In the present case, too, even in the 20 States without a formal prohibition on executing juveniles, the practice is infrequent. Since six States have executed prisoners for crimes committed as juveniles. *565 In the past 10 years, only three have done so: Texas, and Virginia. See V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, No. 76, p. 4 (2005), available at http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec.pdf (last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in Clerk of Court's case file). In December the Governor of Kentucky decided to spare the life of Kevin and commuted his sentence to one of life imprisonment without parole, with the declaration that "`[w]e ought not be executing people who, legally, were children.'" Lexington Herald Leader, Dec. 9, p. B3, WL 65043346. By this act the Governor ensured Kentucky would not add itself to the list of States that have executed juveniles within the last 10 years even by the execution of the very defendant whose death sentence the Court had upheld in There is, to be sure, at least one between the evidence of consensus in and in this case. Impressive in was the rate of abolition of the death for the mentally retarded. Sixteen States that permitted the execution of the mentally retarded at the time of Penry had prohibited the practice by the time we heard By contrast, the rate of change in reducing the incidence of the juvenile death or in taking specific steps to abolish it, has been slower. Five States that allowed the juvenile death at the time of have abandoned it in the intervening 15 years — four through legislative enactments and one through judicial decision. Streib, ; Though less dramatic than the change from Penry to ("telling," to borrow the word used to describe this n. 18), we still consider the change from to this case to be significant. As in with respect to the States that had abandoned *566 the death for the mentally retarded since Penry, "[i]t is not so much the number of these States that is significant, but the consistency of the direction of change." In particular we found it significant that, in the wake of Penry, no State that had already prohibited the execution of the mentally retarded had passed legislation to reinstate the -316. The number of States that have abandoned capital punishment for juvenile offenders since is smaller than the number of States that abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of change has been demonstrated. Since no State that previously prohibited capital punishment for juveniles has reinstated it. This fact, coupled with the trend toward abolition of the juvenile death carries special force in light of the general popularity of anticrime legislation, and in light of the particular trend in recent years toward cracking down on juvenile crime in other respects, see H. Snyder & M. Sickmund, National Center for Juvenile Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept. 1999); Scott & Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 Any between this case and with respect to the pace of abolition is thus counterbalanced by the consistent direction of the change. The slower pace of abolition of the juvenile death over the past 15 years, moreover, may have a simple explanation. When we heard Penry, only two death States had already prohibited the execution of the mentally retarded. When we heard by contrast, 12 death States had already prohibited the execution of any juvenile under 18, and 15 had prohibited the execution of any juvenile under 17. If anything, this shows that the impropriety of executing juveniles between 16 and 18 years of age *567 gained wide recognition earlier than the impropriety of executing the mentally retarded. In the words of the Missouri Supreme Court: "It would be the ultimate in irony if the very fact that the inappropriateness of the death for juveniles was broadly recognized sooner than it was recognized for the mentally retarded were to become a reason to continue the execution of juveniles now that the execution of the mentally retarded has been barred." n. 10. Petitioner cannot show national consensus in favor of capital punishment for juveniles but still resists the conclusion that any consensus exists against it. Petitioner supports this position with, in particular, the observation that when the Senate ratified the International Covenant on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171 it did so subject to the President's proposed reservation regarding Article 6(5) of that treaty, which prohibits capital punishment for juveniles. Brief for Petitioner 27. This reservation at best provides only faint support for petitioner's argument. First, the reservation was passed in 1992; since then, five States have abandoned capital punishment for juveniles. Second, Congress considered the issue when enacting the Federal Death Penalty Act in 1994, and determined that the death should not extend to juveniles. See 18 U.S. C. 3591. The reservation to Article 6(5) of the ICCPR provides minimal evidence that there is not now a national consensus against juvenile executions. As in the objective indicia of consensus in this case — the rejection of the juvenile death in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice — provide sufficient evidence that today our society views juveniles, in the words used respecting the mentally retarded, as "categorically less culpable than the average criminal." 536 U.S., *568 B A majority of States have rejected the imposition of the death on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment. Because the death is the most severe punishment, the Eighth Amendment applies to it with special force. U. S., at 856 (O'CONNOR, J., concurring in judgment). Capital punishment must be limited to those offenders who commit "a narrow category of the most serious crimes" and whose extreme culpability makes them "the most deserving of execution." This principle is implemented throughout the capital sentencing process. States must give narrow and precise definition to the aggravating factors that can result in a capital sentence. In any capital case a defendant has wide latitude to raise as a mitigating factor "any aspect of [his or her] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." ; ; see also with respect to a sentencer's consideration of aggravating and mitigating factors). There are a number of crimes that beyond question are severe in absolute terms, yet the death may not be imposed for their commission. ; The death may not be imposed on certain classes of offenders, such as juveniles under 16, the insane, and the mentally retarded, no matter how heinous the crime. ; These rules vindicate the underlying principle *569 that the death is reserved for a narrow category of crimes and offenders. Three general s between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, "[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions." at ; see also It has been that "adolescents are overrepresented statistically in virtually every category of reckless behavior." Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Review 339 (1992). In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. See Appendixes B-D, infra. The second area of is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (hereinafter Steinberg & Scott) ("[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting"). *570 The third broad is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis (1968). These s render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means "their irresponsible conduct is not as morally reprehensible as that of an adult." Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. See The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed. Indeed, "[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." ; see also Steinberg & Scott 1014 ("For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood"). In a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death on juveniles *571 below that -838. We conclude the same reasoning applies to all juvenile offenders under 18. Once the diminished culpability of juveniles is recognized, it is evident that the penological justifications for the death apply to them with lesser force than to adults. We have held there are two distinct social purposes served by the death : "`retribution and deterrence of capital crimes by prospective offenders.'" 536 U. S., ). As for retribution, we remarked in that "[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution." 536 U.S., The same conclusions follow from the lesser culpability of the juvenile offender. Whether viewed as an attempt to express the community's moral outrage or as an attempt to right the balance for the wrong to the victim, the case for retribution is not as strong with a minor as with an adult. Retribution is not proportional if the law's most severe is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and immaturity. As for deterrence, it is unclear whether the death has a significant or even measurable deterrent effect on juveniles, as counsel for the petitioner acknowledged at oral argument. Tr. of Oral Arg. 48. In general we leave to legislatures the assessment of the efficacy of various criminal schemes, see Here, however, the absence of evidence of deterrent effect is of special concern because the same characteristics that render juveniles less culpable than adults suggest as well that juveniles will be less susceptible to deterrence. In particular, as the plurality observed in *572 "[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent." To the extent the juvenile death might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person. In concluding that neither retribution nor deterrence provides adequate justification for imposing the death on juvenile offenders, we cannot deny or overlook the brutal crimes too many juvenile offenders have committed. See Brief for Alabama et al. as Amici Curiae. Certainly it can be argued, although we by no means concede the point, that a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death. Indeed, this possibility is the linchpin of one contention pressed by petitioner and his amici. They assert that even assuming the truth of the observations we have made about juveniles' diminished culpability in general, jurors nonetheless should be allowed to consider mitigating arguments related to youth on a case-by-case basis, and in some cases to impose the death if justified. A central feature of death sentencing is a particular assessment of the circumstances of the crime and the characteristics of the offender. The system is designed to consider both aggravating and mitigating circumstances, including youth, in every case. Given this Court's own insistence on individualized consideration, petitioner maintains that it is both arbitrary and unnecessary to adopt a categorical rule barring imposition of the death on any offender under 18 years of We disagree. The s between juvenile and adult offenders are too marked and well understood to risk allowing *573 a youthful person to receive the death despite insufficient culpability. An unacceptable likelihood exists that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender's objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death. In some cases a defendant's youth may even be counted against him. In this very case, as we above, the prosecutor argued Simmons' youth was aggravating rather than mitigating. While this sort of overreaching could be corrected by a particular rule to ensure that the mitigating force of youth is not overlooked, that would not address our larger concerns. It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014-1016. As we understand it, this difficulty underlies the rule forbidding psychiatrists from diagnosing any patient under 18 as having antisocial personality disorder, a disorder also referred to as psychopathy or sociopathy, and which is characterized by callousness, cynicism, and contempt for the feelings, rights, and suffering of others. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 701-706 (4th ed. text rev. 2000); see also Steinberg & Scott 1015. If trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, we conclude that States should refrain from asking jurors to issue a far graver condemnation — that a juvenile offender merits the death When a juvenile offender commits a heinous crime, the State can exact forfeiture of some *574 of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity. Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in drew the line at 16. In the intervening years the plurality's conclusion that offenders under 16 may not be executed has not been challenged. The logic of extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest. These considerations mean should be deemed no longer controlling on this issue. To the extent was based on review of the objective indicia of consensus that obtained in 492 U.S., it suffices to note that those indicia have It should be observed, furthermore, that the Court should have considered those States that had abandoned the death altogether as part of the consensus against the juvenile death n. 2; a State's decision to bar the death altogether of necessity demonstrates a judgment that the death is inappropriate for all offenders, including juveniles. Last, to the extent was based on a rejection of the idea that this Court is required to bring its independent judgment to bear on the proportionality of the death for a particular class of crimes or offenders, it suffices to note that this rejection was inconsistent with prior Eighth Amendment decisions, U. S., at 833-838 *575 ; ; 433 U. S., at It is also inconsistent with the premises of our recent decision in -313, 317-321. In holding that the death cannot be imposed upon juvenile offenders, we take into account the circumstance that some States have relied on in seeking the death against juvenile offenders. This consideration, however, does not outweigh our conclusion that should no longer control in those few pending cases or in those yet to arise. IV Our determination that the death is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments." -103 ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime"); see also (recognizing that "within the world community, the imposition of the death for crimes committed by mentally retarded offenders is overwhelmingly disapproved"); -831, and n. 31 (noting the abolition of the juvenile death "by other nations that share our Anglo-American heritage, and by the leading members of the Western European community," and observing that "[w]e have previously recognized the relevance of the views of the international community *576 in determining whether a punishment is cruel and unusual"); ; ("It is not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death for rape where death did not ensue"). As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as ); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 ; African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/ 24.9/49 (1990) (entered into force Nov. 29, 1999) *577 Respondent and his amici have submitted, and petitioner does not contest, that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death Though the international covenants prohibiting the juvenile death are of more recent date, it is instructive to note that the United Kingdom abolished the juvenile death before these covenants came into being. The United Kingdom's experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins. The Amendment was modeled on a parallel provision in the English Declaration of Rights of 1689, which provided: "[E]xcessive Bail ought not to be required nor excessive Fines imposed; nor cruel and unusual Punishments inflicted." 1 W. & M., ch. 2, 10, in 3 Eng. Stat. at Large 441 (1770); see also As of now, the United Kingdom has abolished the death in its entirety; but, decades before it took this step, it recognized the disproportionate nature of the juvenile death ; and it abolished that as a separate matter. In 1930 an official committee recommended that the minimum age for execution be raised to 21. House of Commons Report from the Select Committee on Capital Punishment (1930), 193, p. 44. Parliament then enacted the Children and Young Person's Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at the date of the sentence. And in 1948, Parliament enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at the time of the offense. In the 56 years that have passed *578 since the United Kingdom abolished the juvenile death the weight of authority against it there, and in the international community, has become well established. It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. Over time, from one generation to the next, the Constitution has come to earn the high respect and even, as Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The document sets forth, and rests upon, innovative principles original to the American experience, such as federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure individual freedom and preserve human dignity. These doctrines and guarantees are central to the American experience and remain essential to our present-day self-definition and national identity. Not the least of the reasons we honor the Constitution, then, is because we know it to be our own. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. * * * The Eighth and Fourteenth Amendments forbid imposition of the death on offenders who were under the age of 18 when their crimes were committed. The judgment *579 of the Missouri Supreme Court setting aside the sentence of death imposed upon Christopher Simmons is affirmed. It is so ordered. APPENDIX A TO OPINION OF THE COURT I. STATES THAT PERMIT THE IMPOSITION OF THE DEATH PENALTY ON JUVENILES Alabama Ala. Code 13A-6-2(c) (no express minimum age) Arizona Ariz. Rev. Stat. Ann. 13-703(A) Arkansas Ark. Code Ann. 5-4-615 Delaware Del. Code Ann., Tit. 11 (Lexis 1995) Florida Fla. Stat. 985.225(1) Georgia Ga. Code Ann. 17-9-3 Idaho Idaho Code 18-4004 Kentucky Ky. Rev. Stat. Ann. 640.040(1) (Lexis 1999) (minimum age of 16) Louisiana La. Stat. Ann. 14:30(C) (West Supp. 2005) (no express minimum age) Mississippi Miss. Code Ann. 97-3-21 (Lexis 2000) Missouri Mo. Rev. Stat. Ann. 565.020 (2000) (minimum age of 16) Nevada Nev. Rev. Stat. 176.025 New Hampshire N. H. Rev. Stat. Ann. 630:1(V) (West 1996) (minimum age of 17) North Carolina N. C. Gen. Stat. 14-17 (minimum age of 17, except that those under 17 who commit murder while serving a prison sentence for a previous murder may receive the death ) Okla. Stat. Ann., Tit. 21, 701.10 (no express minimum age) Pennsylvania 18 Pa. Cons. Stat. 1102 South Carolina S. C. Code Ann. 16-3-20 (West Supp. and main ed.) Texas Tex. Penal Code Ann. 8.07(c) (minimum age of 17) Utah Utah Code Ann. 76-3-206(1) (no express minimum age) *580 Virginia Va. Code Ann. 18.2-10(a) (minimum age of 16) II. STATES THAT RETAIN THE DEATH PENALTY, BUT SET THE MINIMUM AGE AT 18 California Cal. Penal Code Ann. 190.5 (West 1999) Colorado Colo. Rev. Stat. 18-1.4-102(1)(a) Connecticut Conn. Gen. Stat. 53a-46a(h) (2005) Illinois Ill. Comp. Stat., ch. 720, 5/9-1(b) Indiana Ind. Code Ann. 35-50-2-3 Kansas Kan. Stat. Ann. 21-4622 (1995) Maryland Md. Crim. Law Code Ann. 2-202(b)(2)(i) Montana Mont. Code Ann. 45-5-102 Nebraska Neb. Rev. Stat. 28-105.01(1) New Jersey N. J. Stat. Ann. 2C:11-3(g) New Mexico N. M. Stat. Ann. 31-18-14(A) (2000) New York N. Y. Penal Law Ann. 125.27 Ohio Ohio Rev. Code Ann. 2929.02(A) Oregon Ore. Rev. Stat. 161.620, 137.707(2) South Dakota S. D. Codified Laws 23A-27A-42 Tennessee Tenn. Code Ann. 37-1-134(a)(1) (1996) Washington Minimum age of 18 established by judicial decision. Wyoming Wyo. Stat. 6-2-101(b) * * * During the past year, decisions by the highest courts of Kansas and New York invalidated provisions in those States' death statutes. (invalidating provision that required imposition of the death if aggravating and mitigating circumstances were found to be in equal balance); Due to these decisions, it would appear that in these States the death remains on the books, but that as a practical matter it might not be imposed on anyone until there is a change of course in these decisions, or until the respective state legislatures remedy the problems the courts have identified. Marsh, 464; 817 N. E 2d, at 344. *581 III. STATES WITHOUT THE DEATH PENALTY Alaska Hawaii Iowa Maine Massachusetts Michigan Minnesota North Dakota Rhode Island Vermont West Virginia Wisconsin APPENDIX B TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE TO VOTE STATE AGE STATUTE Alabama 18 Ala. Const., Amdt. No. 579 Alaska 18 Alaska Const., Art. V, 1; Alaska Stat. 15-05.010 Arizona 18 Ariz. Const., Art. VII, 2; Ariz. Rev. Stat. 16-101 Arkansas 18 Ark. Code Ann. 9-25-101 California 18 Cal. Const., Art. 2, 2 Colorado 18 Colo. Rev. Stat. 1-2-101 Connecticut 18 Conn. Const., Art. 6, 1; Conn. Gen. Stat. 9-12 (2005) Delaware 18 Del. Code Ann., Tit. 15, 1701 District of 18 Dall. C. Code 1-1001.02(2)(B) Columbia Florida 18 Fla. Stat. ch. 97.041 Georgia 18 Ga. Const., Art. 2, 1, ¶ 2; Ga. Code Ann. 21-2-216 Hawaii Haw. Const., Art. II, 1; Haw. Rev. Stat. 11-12 (1995) Idaho 18 Idaho Code 34-402 Illinois 18 Ill. Const., Art. III, 1; Ill. Comp. Stat. ch. 10, 5/3-1 Indiana 18 Ind. Code Ann. 3-7-13-1 Iowa 18 Iowa Code 48A.5 *582 Kansas 18 Kan. Const., Art. 5, 1 Kentucky 18 Ky. Const., 145 Louisiana 18 La. Const., Art. I, 10; La. Rev. Stat. Ann. 18:101 Maine 18 Me. Const., Art. II, 1 ; Me. Rev. Stat. Ann., Tit. 21-A, 111, 111-A Maryland 18 Md. Elec. Law Code Ann. 3-102 Massachusetts 18 Mass. Gen. Laws Ann., ch. 51, 1 (West Supp. 2005) Michigan 18 Mich. Comp. Laws Ann. 168.492 Minnesota 18 Minn. Stat. 201.014(1)(a) Mississippi 18 Miss. Const., Art. 12, 241 Missouri 18 Mo. Const., Art. VIII, 2 Montana 18 Mont. Const., Art. IV, 2; Mont. Code Ann. 13-1-111 Nebraska 18 Neb. Const., Art. VI, 1; Neb. Rev. Stat. 32-110 Nevada 18 Nev. Rev. Stat. 293.485 New 18 N. H. Const., Pt. 1, Art. 11 Hampshire New Jersey 18 N. J. Const., Art. II, 1, ¶ 3 New Mexico 18 [no provision other than U. S. Const., Amdt. XXVI] New York 18 N. Y. Elec. Law Ann. 5-102 (West 1998) North 18 N. C. Gen. Stat. Ann. 163-55 Carolina North Dakota 18 N. D. Const., Art. II, 1 Ohio 18 Ohio Const., Art. V, 1; Ohio Rev. Code Ann. 3503.01 (Anderson 1996) 18 Okla. Const., Art. III, 1 Oregon 18 Ore. Const., Art. II, 2 Pennsylvania 18 25 Pa. Cons. Stat. Ann. 2811 (1994) Rhode Island 18 Rawle I. Gen. Laws 17-1-3 South 18 S. C. Code Ann. 7-5-610 Carolina South Dakota 18 S. D. Const., Art. VII, 2; S. D. Codified Laws Ann. 12-3-1 Tennessee 18 Tenn. Code Ann. 2-2-102 Texas 18 Tex. Elec. Code Ann. 11.002 Utah 18 Utah Const., Art. IV, 2; Utah Code Ann. 20A-2-101 Vermont 18 Vt. Stat. Ann., Tit. 17, 2121 *583 Virginia 18 Va. Const., Art. II, 1 Washington 18 Wash. Const., Art. VI, 1 West Virginia 18 W. Va. Code 3-1-3 Wisconsin 18 Wis. Const., Art. III, 1; Wis. Stat. 6.02 Wyoming 18 Wyo. Stat. Ann. 22-1-102, 22-3-102 * * * The Twenty-Sixth Amendment to the Constitution of the United States provides that "[t]he right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of " APPENDIX C TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY SERVICE STATE AGE STATUTE Alabama 19 Ala. Code 12-16-60(a)(1) (West 1995) Alaska 18 Alaska Stat. 09.20.010(a)(3) Arizona 18 Ariz. Rev. Stat. 21-301(D) Arkansas 18 Ark. Code Ann. 16-31-101, 16-32-302 California 18 Cal. Civ. Proc. 203(a)(2) (West Supp. 2005) Colorado 18 Colo. Rev. Stat. 13-71-105(2)(a) Connecticut 18 Conn. Gen. Stat. 51-217(a) (2005) Delaware 18 Del. Code Ann., Tit. 10, 4509(b)(2) (Michie 1999) District of 18 Dall. C. Code 11-1906(b)(1)(C) Columbia Florida 18 Fla. Stat. 40.01 Georgia 18 Ga. Code Ann. 15-12-60, 15-12-163 Hawaii 18 Haw. Rev. Stat. 612-4(a)(1) Idaho 18 Idaho Code 2-209(2)(a) Illinois 18 Ill. Comp. Stat., ch. 705, 305/2 Indiana 18 Ind. Code 33-28-4-8 Iowa 18 Iowa Code 607A.4(1)(a) Kansas 18 Kan. Stat. Ann. 43-156 (2000) (jurors must be qualified to be electors); Kan. Const., Art. 5, 1 (person must be 18 to be qualified elector) *584 Kentucky 18 Ky. Rev. Stat. Ann. 29A.080(2)(a) Louisiana 18 La. Code Crim. Proc. Ann., Art. 401(A)(2) Maine 18 Me. Rev. Stat. Ann., Tit. 14, 1211 Maryland 18 Md. Cts. & Jud. Proc. Code Ann. 8-104 Massachusetts 18 Mass. Gen. Laws Ann., ch. 234, 1 (West 2000) (jurors must be qualified to vote); ch. 51, 1 (West Supp. 2005) (person must be 18 to vote) Michigan 18 Mich. Comp. Laws Ann. 600.1307a(1)(a) Minnesota 18 Minn. Dist. Ct. Rule 808(b)(2) Mississippi 21 Miss. Code Ann. 13-5-1 Missouri 21 Mo. Rev. Stat. 494.425(1) (2000) Montana 18 Mont. Code Ann. 3-15-301 Nebraska 19 Neb. Rev. Stat. 25-1601 Nevada 18 Nev. Rev. Stat. 6.010 (juror must be qualified elector); 293.485 (person must be 18 to vote) New 18 N. H. Rev. Stat. Ann. 500-A:7-a(I) New Jersey 18 N. J. Stat. Ann. 2B:20-1(a) (West Pamphlet) New Mexico 18 N. M. Stat. Ann. 38-5-1 (1998) New York 18 N. Y. Jud. Law Ann. 510(2) North 18 N. C. Gen. Stat. Ann. 9-3 Carolina North Dakota 18 N. D. Cent. Code 27-09.1-08(2)(b) Ohio 18 Ohio Rev. Code Ann. 2313.42 18 Okla. Stat. Ann., Tit. 38, 28 (West Supp. 2005) Rhode Island 18 Rawle I. Gen. Laws 9-9-1.1(a)(2) (Lexis Supp. 2005) South 18 S. C. Code Ann. 14-7-130 Carolina South Dakota 18 S. D. Codified Laws 16-13-10 Tennessee 18 Tenn. Code Ann. 22-1-101 (1994) Texas 18 Tex. Govt. Code Ann. 62.102(1) (West 1998) Utah 18 Utah Code Ann. 78-46-7(1)(b) Vermont 18 Vt. Stat. Ann., Tit. 4, 962(a)(1) (Lexis 1999); (jurors must have attained age of majority); Tit. 1, 173 (age of majority is 18) *585 Virginia 18 Va. Code Ann. 8.01-337 (Lexis 2000) Washington 18 Wash. Rev. Code Ann. 2.36.070 West Virginia 18 W. Va. Code 52-1-8(b)(1) (Lexis 2000) Wisconsin 18 Wis. Stat. 756.02 Wyoming 18 Wyo. Stat. Ann. 1-11-101 (jurors must be adults); 14-1-101 (person becomes an adult at 18) APPENDIX D TO OPINION OF THE COURT STATE STATUTES ESTABLISHING A MINIMUM AGE FOR MARRIAGE WITHOUT PARENTAL OR JUDICIAL CONSENT STATE AGE STATUTE Alabama 18 Ala. Code 30-1-5 Alaska 18 Alaska Stat. 25.05.011, 25.05.171 Arizona 18 Ariz. Rev. Stat. Ann. 25-102 Arkansas 18 Ark. Code Ann. 9-11-102, 9-11-208 California 18 Cal. Fam. Code Ann. 301 Colorado 18 Colo. Rev. Stat. Ann. 14-2-106 Connecticut 18 Conn. Gen. Stat. 46b-30 (2005) Delaware 18 Del. Code Ann., Tit. 13, 123 (Lexis 1999) District of 18 Dall. C. Code 46-411 Columbia Florida 18 Fla. Stat. 741.04, 741.0 Georgia 16 Ga. Code Ann. 19-3-2, 19-3-37 (those under 18 must obtain parental consent unless female applicant is pregnant or both applicants are parents of a living child, in which case minimum age to marry without consent is 16) Hawaii 18 Haw. Rev. Stat. 572-2 Idaho 18 Idaho Code 32-202 (Michie 1996) Illinois 18 Ill. Comp. Stat., ch. 750, 5/203 Indiana 18 Ind. Code Ann. 31-11-1-4, 31-11-1-5, 31-11-2-1, 31-11-2-3 Iowa 18 Iowa Code 595.2 Kansas 18 Kan. Stat. Ann. 23-106 Kentucky 18 Ky. Rev. Stat. Ann. 402.020, 402.210 (Lexis 1999) Louisiana 18 La. Children's Code Ann., Arts. 1545, 1547 (minors may not marry without *586 consent); La. Civ. Code Ann., Art. 29 (West 1999) (age of majority is 18) Maine 18 Me. Rev. Stat. Ann., Tit. 19-A, 652 Maryland 16 Md. Fam. Law Code Ann. 2-301 (those under 18 must obtain parental consent unless female applicant can present proof of pregnancy or a child, in which case minimum age to marry without consent is 16) Massachusetts 18 Mass. Gen. Laws Ann., ch. 207, 7, 24, 25 (West 1998) Michigan 18 Mich. Comp. Laws Ann. 551.103 (West 2005) Minnesota 18 Minn. Stat. 517.02 Mississippi 15/17 Miss. Code Ann. 93-1-5 (female applicants must be 15; male applicants must be 17) Missouri 18 Mo. Rev. Stat. 451.090 (2000) Montana 18 Mont. Code Ann. 40-1-202, 40-1-213 Nebraska 19 Neb. Rev. Stat. 42-105 (minors must have parental consent to marry); 43-2101 (defining "minor" as a person under 19) Nevada 18 Nev. Rev. Stat. 122.020 New 18 N. H. Rev. Stat. Ann. 457:5 (West 1992) Hampshire New Jersey 18 N. J. Stat. Ann. 37:1-6 New Mexico 18 N. M. Stat. Ann. 40-1-6 (1999) New York 18 N.Y. Dom. Rel. Law Ann. 15 (West Supp. 2005) North 18 N. C. Gen. Stat. Ann. 51-2 Carolina North Dakota 18 N. D. Cent. Code 14-03-02 Ohio 18 Ohio Rev. Code Ann. 3101.01 18 Okla. Stat. Ann., Tit. 43, 3 (West Supp. 2005) Oregon 18 Ore. Rev. Stat. 106.060 Pennsylvania 18 23 Pa. Cons. Stat. 1304 Rhode Island 18 Rawle I. Gen. Laws 15-2-11 South 18 S. C. Code Ann. 20-1-250 Carolina South Dakota 18 S. D. Codified Laws 25-1-9 Tennessee 18 Tenn. Code Ann. 36-3-106 (1996) Texas 18 Tex. Fam. Code Ann. 2.101-2.103 (West 1998) Utah 18 Utah Code Ann. 30-1-9 Vermont 18 Vt. Stat. Ann., Tit. 18, 5142 (Lexis 2000) *587 Virginia 18 Va. Code Ann. 20-45.1, 20-48, 20-49 Washington 18 Wash. Rev. Code Ann. 26.04.210 (West 2005) West Virginia 18 W. Va. Code 48-2-301 Wisconsin 18 Wis. Stat. 765.02 Wyoming 18 Wyo. Stat. Ann.

Justice Stevens

concurring

Roper v. Simmons

2005-03-01

https://www.courtlistener.com/opinion/137749/roper-v-simmons/

https://www.courtlistener.com/api/rest/v3/clusters/137749/

2004-024

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (describing the common law at the time of the Amendment's adoption). The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY's opinion for the Court. In all events, I do so without hesitation.

Perhaps even more important than our specific holding today is our reaffirmation of the basic principle that informs the Court's interpretation of the Eighth Amendment. If the meaning of that Amendment had been frozen when it was originally drafted, it would impose no impediment to the execution of 7-year-old children today. See The evolving standards of decency that have driven our construction of this critically important part of the Bill of Rights foreclose any such reading of the Amendment. In the best tradition of the common law, the pace of that evolution is a matter for continuing debate; but that our understanding of the Constitution does change from time to time has been settled since John Marshall breathed life into its text. If great lawyers of his day—Alexander Hamilton, for example—were sitting with us today, I would expect them to join JUSTICE KENNEDY's opinion for the Court. In all events, I do so without hesitation.

Justice O'Connor

dissenting

Roper v. Simmons

2005-03-01

https://www.courtlistener.com/opinion/137749/roper-v-simmons/

https://www.courtlistener.com/api/rest/v3/clusters/137749/

2004-024

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling. *588 Although the Court finds support for its decision in the fact that a majority of the States now disallow capital punishment of 17-year-old offenders, it refrains from asserting that its holding is compelled by a genuine national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such consensus has emerged in the brief period since we upheld the constitutionality of this practice in Stanford v. Kentucky, 492 U.S. 361 (1989). Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth. On this record—and especially in light of the fact that so little has changed since our recent decision in Stanford—I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation's legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it. I A Let me begin by making clear that I agree with much of the Court's description of the general principles that guide our Eighth Amendment jurisprudence. The Amendment *589 bars not only punishments that are inherently "`barbaric,'" but also those that are "`excessive' in relation to the crime committed." Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). A sanction is therefore beyond the State's authority to inflict if it makes "no measurable contribution" to acceptable penal goals or is "grossly out of proportion to the severity of the crime." Ibid. The basic "precept of justice that punishment for crime should be ... proportioned to [the] offense," Weems v. United States, 217 U.S. 349, 367 (1910), applies with special force to the death penalty. In capital cases, the Constitution demands that the punishment be tailored both to the nature of the crime itself and to the defendant's "personal responsibility and moral guilt." Enmund v. Florida, 458 U.S. 782, 801 (1982); see also id., at 825 (O'CONNOR, J., dissenting); Tison v. Arizona, 481 U.S. 137, 149 (1987); Eddings v. Oklahoma, 455 U.S. 104, 111-112 (1982). It is by now beyond serious dispute that the Eighth Amendment's prohibition of "cruel and unusual punishments" is not a static command. Its mandate would be little more than a dead letter today if it barred only those sanctions—like the execution of children under the age of seven—that civilized society had already repudiated in 1791. See ante, at 587 (STEVENS, J., concurring); cf. Stanford, supra, at 368 (discussing the common law rule at the time the Bill of Rights was adopted). Rather, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality opinion). In discerning those standards, we look to "objective factors to the maximum possible extent." Coker, supra, at 592 (plurality opinion). Laws enacted by the Nation's legislatures provide the "clearest and most reliable objective evidence of contemporary values." Penry v. Lynaugh, 492 U.S. 302, 331 (1989). *590 And data reflecting the actions of sentencing juries, where available, can also afford "`a significant and reliable objective index'" of societal mores. Coker, supra, at 596 (plurality opinion) (quoting Gregg v. Georgia, 428 U.S. 153, 181 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.)). Although objective evidence of this nature is entitled to great weight, it does not end our inquiry. Rather, as the Court today reaffirms, see ante, at 563, 574-575, "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment," Coker, supra, at 597 (plurality opinion). "[P]roportionality—at least as regards capital punishment—not only requires an inquiry into contemporary standards as expressed by legislators and jurors, but also involves the notion that the magnitude of the punishment imposed must be related to the degree of the harm inflicted on the victim, as well as to the degree of the defendant's blameworthiness." Enmund, supra, at 815 (O'CONNOR, J., dissenting). We therefore have a "constitutional obligation" to judge for ourselves whether the death penalty is excessive punishment for a particular offense or class of offenders. See Stanford, 492 U. S., at 382 (O'CONNOR, J., concurring in part and concurring in judgment); see also Enmund, supra, at 797 ("[I]t is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty"). B Twice in the last two decades, the Court has applied these principles in deciding whether the Eighth Amendment permits capital punishment of adolescent offenders. In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of four Justices concluded that the Eighth Amendment barred capital punishment of an offender for a crime committed before the age of 16. I concurred in that judgment on narrower grounds. At the time, 32 state legislatures had "definitely concluded that no 15-year-old should be exposed to the threat *591 of execution," and no legislature had affirmatively endorsed such a practice. Id., at 849 (O'CONNOR, J., concurring in judgment). While acknowledging that a national consensus forbidding the execution of 15-year-old offenders "very likely" did exist, I declined to adopt that conclusion as a matter of constitutional law without clearer evidentiary support. Ibid. Nor, in my view, could the issue be decided based on moral proportionality arguments of the type advanced by the Court today. Granting the premise "that adolescents are generally less blameworthy than adults who commit similar crimes," I wrote, "it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment." Id., at 853. Similarly, we had before us no evidence "that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty." Ibid. I determined instead that, in light of the strong but inconclusive evidence of a national consensus against capital punishment of under-16 offenders, concerns rooted in the Eighth Amendment required that we apply a clear statement rule. Because the capital punishment statute in Thompson did not specify the minimum age at which commission of a capital crime would be punishable by death, I concluded that the statute could not be read to authorize the death penalty for a 15-year-old offender. Id., at 857-858. The next year, in Stanford v. Kentucky, supra, the Court held that the execution of 16- or 17-year-old capital murderers did not violate the Eighth Amendment. I again wrote separately, concurring in part and concurring in the judgment. At that time, 25 States did not permit the execution of under-18 offenders, including 13 that lacked the death penalty altogether. See id., at 370. While noting that "[t]he day may come when there is such general legislative rejection of the execution of 16- or 17-year-old capital murderers that a clear national consensus can be said to have developed," I concluded that that day had not yet arrived. Id., *592 at 381-382. I reaffirmed my view that, beyond assessing the actions of legislatures and juries, the Court has a constitutional obligation to judge for itself whether capital punishment is a proportionate response to the defendant's blameworthiness. Id., at 382. Nevertheless, I concluded that proportionality arguments similar to those endorsed by the Court today did not justify a categorical Eighth Amendment rule against capital punishment of 16- and 17-year-old offenders. See ibid. (citing Thompson, supra, at 853-854 (O'CONNOR, J., concurring in judgment)). The Court has also twice addressed the constitutionality of capital punishment of mentally retarded offenders. In Penry v. Lynaugh, 492 U.S. 302 (1989), decided the same year as Stanford, we rejected the claim that the Eighth Amendment barred the execution of the mentally retarded. At that time, only two States specifically prohibited the practice, while 14 others did not have capital punishment at all. 492 U.S., at 334. Much had changed when we revisited the question three Terms ago in Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court reversed Penry and held that the Eighth Amendment forbids capital punishment of mentally retarded offenders. 536 U.S., at 321. In the 13 years between Penry and Atkins, there had been a wave of legislation prohibiting the execution of such offenders. By the time we heard Atkins, 30 States barred the death penalty for the mentally retarded, and even among those States theoretically permitting such punishment, very few had executed a mentally retarded offender in recent history. 536 U.S., at 314-316. On the basis of this evidence, the Court determined that it was "fair to say that a national consensus ha[d] developed against" the practice. Id., at 316. But our decision in Atkins did not rest solely on this tentative conclusion. Rather, the Court's independent moral judgment was dispositive. The Court observed that mentally retarded persons suffer from major cognitive and behavioral *593 deficits, i. e., "subaverage intellectual functioning" and "significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." Id., at 318. "Because of their impairments, [such persons] by definition ... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." Ibid. We concluded that these deficits called into serious doubt whether the execution of mentally retarded offenders would measurably contribute to the principal penological goals that capital punishment is intended to serve—retribution and deterrence. Id., at 319-321. Mentally retarded offenders' impairments so diminish their personal moral culpability that it is highly unlikely that such offenders could ever deserve the ultimate punishment, even in cases of capital murder. Id., at 319. And these same impairments made it very improbable that the threat of the death penalty would deter mentally retarded persons from committing capital crimes. Id., at 319-320. Having concluded that capital punishment of the mentally retarded is inconsistent with the Eighth Amendment, the Court "`le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'" Id., at 317 (quoting Ford v. Wainwright, 477 U.S. 399, 416-417 (1986)). II A Although the general principles that guide our Eighth Amendment jurisprudence afford some common ground, I part ways with the Court in applying them to the case before us. As a preliminary matter, I take issue with the Court's failure to reprove, or even to acknowledge, the Supreme Court of Missouri's unabashed refusal to follow our *594 controlling decision in Stanford. The lower court concluded that, despite Stanford's clear holding and historical recency, our decision was no longer binding authority because it was premised on what the court deemed an obsolete assessment of contemporary values. Quite apart from the merits of the constitutional question, this was clear error. Because the Eighth Amendment "draw[s] its meaning from ... evolving standards of decency," Trop, 356 U. S., at 101 (plurality opinion), significant changes in societal mores over time may require us to reevaluate a prior decision. Nevertheless, it remains "this Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (emphasis added). That is so even where subsequent decisions or factual developments may appear to have "significantly undermined" the rationale for our earlier holding. United States v. Hatter, 532 U.S. 557, 567 (2001); see also State Oil Co., supra, at 20; Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). The Eighth Amendment provides no exception to this rule. On the contrary, clear, predictable, and uniform constitutional standards are especially desirable in this sphere. By affirming the lower court's judgment without so much as a slap on the hand, today's decision threatens to invite frequent and disruptive reassessments of our Eighth Amendment precedents. B In determining whether the juvenile death penalty comports with contemporary standards of decency, our inquiry begins with the "clearest and most reliable objective evidence of contemporary values"—the actions of the Nation's legislatures. Penry, supra, at 331. As the Court emphasizes, the overall number of jurisdictions that currently disallow the execution of under-18 offenders is the same as the number that forbade the execution of mentally retarded offenders when Atkins was decided. *595 Ante, at 564. At present, 12 States and the District of Columbia do not have the death penalty, while an additional 18 States and the Federal Government authorize capital punishment but prohibit the execution of under-18 offenders. See ante, at 27-28 (Appendix A). And here, as in Atkins, only a very small fraction of the States that permit capital punishment of offenders within the relevant class has actually carried out such an execution in recent history: Six States have executed under-18 offenders in the 16 years since Stanford, while five States had executed mentally retarded offenders in the 13 years prior to Atkins. See Atkins, 536 U. S., at 316; V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, 2004, No. 76, pp. 15-23 (2005), available at http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf (last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in Clerk of Court's case file) (hereinafter Streib). In these respects, the objective evidence in this case is, indeed, "similar, and in some respects parallel to" the evidence upon which we relied in Atkins. Ante, at 564. While the similarities between the two cases are undeniable, the objective evidence of national consensus is marginally weaker here. Most importantly, in Atkins there was significant evidence of opposition to the execution of the mentally retarded, but there was virtually no countervailing evidence of affirmative legislative support for this practice. Cf. Thompson, 487 U. S., at 849 (O'CONNOR, J., concurring in judgment) (attributing significance to the fact that "no legislature in this country has affirmatively and unequivocally endorsed" capital punishment of 15-year-old offenders). The States that permitted such executions did so only because they had not enacted any prohibitory legislation. Here, by contrast, at least eight States have current statutes that specifically set 16 or 17 as the minimum age at which *596 commission of a capital crime can expose the offender to the death penalty. See ante, at 579-580 (Appendix A).[*] Five of these eight States presently have one or more juvenile offenders on death row (six if respondent is included in the count), see Streib 24-31, and four of them have executed at least one under-18 offender in the past 15 years, see id., at 15-23. In all, there are currently over 70 juvenile offenders on death row in 12 different States (13 including respondent). See id., at 11, 24-31. This evidence suggests some measure of continuing public support for the availability of the death penalty for 17-year-old capital murderers. Moreover, the Court in Atkins made clear that it was "not so much the number of [States forbidding execution of the mentally retarded] that [was] significant, but the consistency of the direction of change." 536 U.S., at 315. In contrast to the trend in Atkins, the States have not moved uniformly towards abolishing the juvenile death penalty. Instead, since our decision in Stanford, two States have expressly reaffirmed their support for this practice by enacting statutes setting 16 as the minimum age for capital punishment. See Mo. Rev. Stat. § 565.020.2 (2000); Va. Code Ann. § 18.2-10(a) (Lexis 2004). Furthermore, as the Court emphasized in Atkins itself, 536 U.S., at 315, n. 18, the pace of legislative action in this context has been considerably slower than it was with regard to capital punishment of the mentally retarded. *597 In the 13 years between our decisions in Penry and Atkins, no fewer than 16 States banned the execution of mentally retarded offenders. See Atkins, supra, at 314-315. By comparison, since our decision 16 years ago in Stanford, only four States that previously permitted the execution of under-18 offenders, plus the Federal Government, have legistlatively reversed course, and one additional State's high court has construed the State's death penalty statute not to apply to under-18 offenders, see State v. Furman, 122 Wash. 2d 440, 458, 858 P.2d 1092, 1103 (1993) (en banc). The slower pace of change is no doubt partially attributable, as the Court says, to the fact that 12 States had already imposed a minimum age of 18 when Stanford was decided. See ante, at 566-567. Nevertheless, the extraordinary wave of legislative action leading up to our decision in Atkins provided strong evidence that the country truly had set itself against capital punishment of the mentally retarded. Here, by contrast, the halting pace of change gives reason for pause. To the extent that the objective evidence supporting today's decision is similar to that in Atkins, this merely highlights the fact that such evidence is not dispositive in either of the two cases. After all, as the Court today confirms, ante, at 563, 574-575, the Constitution requires that "`in the end our own judgment ... be brought to bear'" in deciding whether the Eighth Amendment forbids a particular punishment, Atkins, supra, at 312 (quoting Coker, 433 U. S., at 597 (plurality opinion)). This judgment is not merely a rubber stamp on the tally of legislative and jury actions. Rather, it is an integral part of the Eighth Amendment inquiry — and one that is entitled to independent weight in reaching our ultimate decision. Here, as in Atkins, the objective evidence of a national consensus is weaker than in most prior cases in which the Court has struck down a particular punishment under the Eighth Amendment. See Coker, supra, at 595-596 (plurality opinion) (striking down death penalty for rape of an adult *598 woman, where only one jurisdiction authorized such punishment); Enmund, 458 U. S., at 792 (striking down death penalty for certain crimes of aiding and abetting felony-murder, where only eight jurisdictions authorized such punishment); Ford v. Wainwright, 477 U. S., at 408 (striking down capital punishment of the insane, where no jurisdiction permitted this practice). In my view, the objective evidence of national consensus, standing alone, was insufficient to dictate the Court's holding in Atkins. Rather, the compelling moral proportionality argument against capital punishment of mentally retarded offenders played a decisive role in persuading the Court that the practice was inconsistent with the Eighth Amendment. Indeed, the force of the proportionality argument in Atkins significantly bolstered the Court's confidence that the objective evidence in that case did, in fact, herald the emergence of a genuine national consensus. Here, by contrast, the proportionality argument against the juvenile death penalty is so flawed that it can be given little, if any, analytical weight — it proves too weak to resolve the lingering ambiguities in the objective evidence of legislative consensus or to justify the Court's categorical rule. C Seventeen-year-old murderers must be categorically exempted from capital punishment, the Court says, because they "cannot with reliability be classified among the worst offenders." Ante, at 569. That conclusion is premised on three perceived differences between "adults," who have already reached their 18th birthdays, and "juveniles," who have not. See ante, at 569-570. First, juveniles lack maturity and responsibility and are more reckless than adults. Second, juveniles are more vulnerable to outside influences because they have less control over their surroundings. And third, a juvenile's character is not as fully formed as that of an adult. Based on these characteristics, the Court determines that 17-year-old capital murderers are not as *599 blameworthy as adults guilty of similar crimes; that 17-year-olds are less likely than adults to be deterred by the prospect of a death sentence; and that it is difficult to conclude that a 17-year-old who commits even the most heinous of crimes is "irretrievably depraved." Ante, at 570-572. The Court suggests that "a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death." Ante, at 572. However, the Court argues that a categorical age-based prohibition is justified as a prophylactic rule because "[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability." Ante, at 572-573. It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles' comparative moral culpability. See, e. g., Johnson v. Texas, 509 U.S. 350, 367 (1993) ("There is no dispute that a defendant's youth is a relevant mitigating circumstance"); id., at 376 (O'CONNOR, J., dissenting) ("[T]he vicissitudes of youth bear directly on the young offender's culpability and responsibility for the crime"); Eddings, 455 U. S., at 115-116 ("Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults"). But even accepting this premise, the Court's proportionality argument fails to support its categorical rule. First, the Court adduces no evidence whatsoever in support of its sweeping conclusion, see ante, at 572, that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the *600 Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty. Similarly, the fact that the availability of the death penalty may be less likely to deter a juvenile from committing a capital crime does not imply that this threat cannot effectively deter some 17-year-olds from such an act. Surely there is an age below which no offender, no matter what his crime, can be deemed to have the cognitive or emotional maturity necessary to warrant the death penalty. But at least at the margins between adolescence and adulthood — and especially for 17-year-olds such as respondent — the relevant differences between "adults" and "juveniles" appear to be a matter of degree, rather than of kind. It follows that a legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case. Indeed, this appears to be just such a case. Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could "`get away with it'" because they were minors. Brief for Petitioner 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, "hog-tied" her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. Id., at 4. One can *601 scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect "`a consciousness materially more "depraved" than that of' . . . the average murderer." Atkins, 536 U. S., at 319 (quoting Godfrey v. Georgia, 446 U.S. 420, 433 (1980)). And Simmons' prediction that he could murder with impunity because he had not yet turned 18 — though inaccurate — suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he "ha[d] sufficient psychological maturity" when he committed this horrific murder, and "at the same time demonstrate[d] sufficient depravity, to merit a sentence of death." Ante, at 572. The Court's proportionality argument suffers from a second and closely related defect: It fails to establish that the differences in maturity between 17-year-olds and young "adults" are both universal enough and significant enough to justify a bright-line prophylactic rule against capital punishment of the former. The Court's analysis is premised on differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult." In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary — it quite likely will protect a number of offenders who are mature enough to *602 deserve the death penalty and may well leave vulnerable many who are not. For purposes of proportionality analysis, 17-year-olds as a class are qualitatively and materially different from the mentally retarded. "Mentally retarded" offenders, as we understood that category in Atkins, are defined by precisely the characteristics which render death an excessive punishment. A mentally retarded person is, "by definition," one whose cognitive and behavioral capacities have been proved to fall below a certain minimum. See Atkins, 536 U.S., at 318; see also id., at 308, n. 3 (discussing characteristics of mental retardation); id., at 317, and n. 22 (leaving to the States the development of mechanisms to determine which offenders fall within the class exempt from capital punishment). Accordingly, for purposes of our decision in Atkins, the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred by the death penalty than others. Rather, a mentally retarded offender is one whose demonstrated impairments make it so highly unlikely that he is culpable enough to deserve the death penalty or that he could have been deterred by the threat of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender's chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence. Seventeen-year-olds may, on average, be less mature than adults, but that lesser maturity simply cannot be equated with the major, lifelong impairments suffered by the mentally retarded. The proportionality issues raised by the Court clearly implicate Eighth Amendment concerns. But these concerns may properly be addressed not by means of an arbitrary, categorical age-based rule, but rather through individualized *603 sentencing in which juries are required to give appropriate mitigating weight to the defendant's immaturity, his susceptibility to outside pressures, his cognizance of the consequences of his actions, and so forth. In that way the constitutional response can be tailored to the specific problem it is meant to remedy. The Eighth Amendment guards against the execution of those who are "insufficient[ly] culpab[le]," see ante, at 573, in significant part, by requiring sentencing that "reflect[s] a reasoned moral response to the defendant's background, character, and crime." California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring). Accordingly, the sentencer in a capital case must be permitted to give full effect to all constitutionally relevant mitigating evidence. See Tennard v. Dretke, 542 U.S. 274, 283-285 (2004); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). A defendant's youth or immaturity is, of course, a paradigmatic example of such evidence. See Eddings, 455 U. S., at 115-116. Although the prosecutor's apparent attempt to use respondent's youth as an aggravating circumstance in this case is troubling, that conduct was never challenged with specificity in the lower courts and is not directly at issue here. As the Court itself suggests, such "overreaching" would best be addressed, if at all, through a more narrowly tailored remedy. See ante, at 573. The Court argues that sentencing juries cannot accurately evaluate a youthful offender's maturity or give appropriate weight to the mitigating characteristics related to youth. But, again, the Court presents no real evidence — and the record appears to contain none — supporting this claim. Perhaps more importantly, the Court fails to explain why this duty should be so different from, or so much more difficult than, that of assessing and giving proper effect to any other qualitative capital sentencing factor. I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon *604 which we place so much reliance in all capital cases are inadequate in this narrow context. D I turn, finally, to the Court's discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 offenders. Very few, if any, countries other than the United States now permit this practice in law or in fact. See ante, at 576-577. While acknowledging that the actions and views of other countries do not dictate the outcome of our Eighth Amendment inquiry, the Court asserts that "the overwhelming weight of international opinion against the juvenile death penalty ... does provide respected and significant confirmation for [its] own conclusions." Ante, at 578. Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court's moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases. Nevertheless, I disagree with JUSTICE SCALIA'S contention, post, at 622-628 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U.S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U.S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth *605 Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 624-625 (SCALIA, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement — expressed in international law or in the domestic laws of individual countries — that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact. * * * In determining whether the Eighth Amendment permits capital punishment of a particular offense or class of offenders, we must look to whether such punishment is consistent with contemporary standards of decency. We are obligated to weigh both the objective evidence of societal values and our own judgment as to whether death is an excessive sanction in the context at hand. In the instant case, the objective evidence is inconclusive; standing alone, it does not demonstrate that our society has repudiated capital punishment of 17-year-old offenders in all cases. Rather, the actions of the Nation's legislatures suggest that, although a clear and durable national consensus against this practice may in time *606 emerge, that day has yet to arrive. By acting so soon after our decision in Stanford, the Court both pre-empts the democratic debate through which genuine consensus might develop and simultaneously runs a considerable risk of inviting lower court reassessments of our Eighth Amendment precedents. To be sure, the objective evidence supporting today's decision is similar to (though marginally weaker than) the evidence before the Court in Atkins. But Atkins could not have been decided as it was based solely on such evidence. Rather, the compelling proportionality argument against capital punishment of the mentally retarded played a decisive role in the Court's Eighth Amendment ruling. Moreover, the constitutional rule adopted in Atkins was tailored to this proportionality argument: It exempted from capital punishment a defined group of offenders whose proven impairments rendered it highly unlikely, and perhaps impossible, that they could act with the degree of culpability necessary to deserve death. And Atkins left to the States the development of mechanisms to determine which individual offenders fell within this class. In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that "the chronological age of a minor is itself a relevant mitigating factor of great weight," Eddings, 455 U. S., at 116, and that sentencing juries must be given an opportunity carefully to consider a defendant's age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant's *607 maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court's flawed proportionality argument simply cannot bear the weight the Court would place upon it. Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at all. Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own "inevitably subjective judgment" on how best to resolve this difficult moral question for the judgments of the Nation's democratically elected legislatures. See Thompson, supra, at 854 (O'CONNOR, J., concurring in judgment). I respectfully dissent.

The Court's decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court's moral proportionality analysis, nor the two in tandem suffice to justify this ruling. *588 Although the Court finds support for its decision in the fact that a majority of the States now disallow capital punishment of 17-year-old offenders, it refrains from asserting that its holding is compelled by a genuine national consensus. Indeed, the evidence before us fails to demonstrate conclusively that any such consensus has emerged in the brief period since we upheld the constitutionality of this practice in Instead, the rule decreed by the Court rests, ultimately, on its independent moral judgment that death is a disproportionately severe punishment for any 17-year-old offender. I do not subscribe to this judgment. Adolescents as a class are undoubtedly less mature, and therefore less culpable for their misconduct, than adults. But the Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures: that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case. Nor has it been shown that capital sentencing juries are incapable of accurately assessing a youthful defendant's maturity or of giving due weight to the mitigating characteristics associated with youth. On this record—and especially in light of the fact that so little has changed since our recent decision in —I would not substitute our judgment about the moral propriety of capital punishment for 17-year-old murderers for the judgments of the Nation's legislatures. Rather, I would demand a clearer showing that our society truly has set its face against this practice before reading the Eighth Amendment categorically to forbid it. I A Let me begin by making clear that I agree with much of the Court's description of the general principles that guide our Eighth Amendment jurisprudence. The Amendment *589 bars not only punishments that are inherently "`barbaric,'" but also those that are "`excessive' in relation to the crime committed." A sanction is therefore beyond the State's authority to inflict if it makes "no measurable contribution" to acceptable penal goals or is "grossly out of proportion to the severity of the crime." The basic "precept of justice that punishment for crime should be proportioned to [the] offense," applies with special force to the death penalty. In capital cases, the Constitution demands that the punishment be tailored both to the nature of the crime and to the defendant's "personal responsibility and moral guilt." ; see also ; ; It is by now beyond serious dispute that the Eighth Amendment's prohibition of "cruel and unusual punishments" is not a static command. Its mandate would be little more than a dead letter today if it barred only those sanctions—like the execution of children under the age of seven—that civilized society had already repudiated in 1791. See ante, at 587 (STEVENS, J., concurring); cf. Rather, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." In discerning those standards, we look to "objective factors to the maximum possible extent." at Laws enacted by the Nation's legislatures provide the "clearest and most reliable objective evidence of contemporary values." *590 And data reflecting the actions of sentencing juries, where available, can also afford "`a significant and reliable objective index'" of societal mores. ). Although objective evidence of this nature is entitled to great weight, it does not end our inquiry. Rather, as the Court today reaffirms, see ante, at 563, 574-575, "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment," "[P]roportionality—at least as regards capital punishment—not only requires an inquiry into contemporary standards as expressed by legislators and jurors, but also involves the notion that the magnitude of the punishment imposed must be related to the degree of the harm inflicted on the victim, as well as to the degree of the defendant's blameworthiness." We therefore have a "constitutional obligation" to judge for ourselves whether the death penalty is excessive punishment for a particular offense or class of See ; see also B Twice in the last two decades, the Court has applied these principles in deciding whether the Eighth Amendment permits capital punishment of adolescent In a plurality of four Justices concluded that the Eighth Amendment barred capital punishment of an offender for a crime committed before the age of 16. I concurred in that judgment on narrower grounds. At the time, 32 state legislatures had "definitely concluded that no 15-year-old should be exposed to the threat *591 of execution," and no legislature had affirmatively endorsed such a practice. While acknowledging that a national consensus forbidding the execution of 15-year-old offenders "very likely" did exist, I declined to adopt that conclusion as a matter of constitutional law without clearer evidentiary support. Nor, in my view, could the issue be decided based on moral proportionality arguments of the type advanced by the Court today. Granting the premise "that adolescents are generally less blameworthy than adults who commit similar crimes," I wrote, "it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment." Similarly, we had before us no evidence "that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty." I determined instead that, in light of the strong but inconclusive evidence of a national consensus against capital punishment of under-16 offenders, concerns rooted in the Eighth Amendment required that we apply a clear statement rule. Because the capital punishment statute in did not specify the minimum age at which commission of a capital crime would be punishable by death, I concluded that the statute could not be read to authorize the death penalty for a 15-year-old offender. The next year, in the Court held that the execution of 16- or 17-year-old capital murderers did not violate the Eighth Amendment. I again wrote separately, concurring in part and concurring in the judgment. At that time, 25 States did not permit the execution of under-18 offenders, including 13 that lacked the death penalty altogether. See While noting that "[t]he day may come when there is such general legislative rejection of the execution of 16- or 17-year-old capital murderers that a clear national consensus can be said to have developed," I concluded that that day had not yet arrived. * at 381-382. I reaffirmed my view that, beyond assessing the actions of legislatures and juries, the Court has a constitutional obligation to judge for whether capital punishment is a proportionate response to the defendant's blameworthiness. Nevertheless, I concluded that proportionality arguments similar to those endorsed by the Court today did not justify a categorical Eighth Amendment rule against capital punishment of 16- and 17-year-old See (citing -854 ). The Court has also twice addressed the constitutionality of capital punishment of mentally retarded In decided the same year as we rejected the claim that the Eighth Amendment barred the execution of the mentally retarded. At that time, only two States specifically prohibited the practice, while 14 others did not have capital punishment at Much had changed when we revisited the question three Terms ago in In the Court reversed and held that the Eighth Amendment forbids capital punishment of mentally retarded In the 13 years between and there had been a wave of legislation prohibiting the execution of such By the time we heard 30 States barred the death penalty for the mentally retarded, and even among those States theoretically permitting such punishment, very few had executed a mentally retarded offender in recent history. -316. On the basis of this evidence, the Court determined that it was "fair to say that a national consensus ha[d] developed against" the practice. But our decision in did not rest solely on this tentative conclusion. Rather, the Court's independent moral judgment was dispositive. The Court observed that mentally retarded persons suffer from major cognitive and behavioral *593 deficits, i. e., "subaverage intellectual functioning" and "significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18." "Because of their impairments, [such persons] by definition have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others." We concluded that these deficits called into serious doubt whether the execution of mentally retarded offenders would measurably contribute to the principal penological goals that capital punishment is intended to serve—retribution and deterrence. Mentally retarded offenders' impairments so diminish their personal moral culpability that it is highly unlikely that such offenders could ever deserve the ultimate punishment, even in cases of capital murder. And these same impairments made it very improbable that the threat of the death penalty would deter mentally retarded persons from committing capital crimes. -3. Having concluded that capital punishment of the mentally retarded is inconsistent with the Eighth Amendment, the Court "`le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.'" ). II A Although the general principles that guide our Eighth Amendment jurisprudence afford some common ground, I part ways with the Court in applying them to the case before us. As a preliminary matter, I take issue with the Court's failure to reprove, or even to acknowledge, the Supreme Court of Missouri's unabashed refusal to follow our *594 controlling decision in The lower court concluded that, despite 's clear holding and historical recency, our decision was no longer binding authority because it was premised on what the court deemed an obsolete assessment of contemporary values. Quite apart from the merits of the constitutional question, this was clear error. Because the Eighth Amendment "draw[s] its meaning from evolving standards of decency," significant changes in societal mores over time may require us to reevaluate a prior decision. Nevertheless, it remains "this Court's prerogative alone to overrule one of its precedents." State Oil That is so even where subsequent decisions or factual developments may appear to have "significantly undermined" the rationale for our earlier holding. United (01); see also State Oil at ; Rodriguez de The Eighth Amendment provides no exception to this rule. On the contrary, clear, predictable, and uniform constitutional standards are especially desirable in this sphere. By affirming the lower court's judgment without so much as a slap on the hand, today's decision threatens to invite frequent and disruptive reassessments of our Eighth Amendment precedents. B In determining whether the juvenile death penalty comports with contemporary standards of decency, our inquiry begins with the "clearest and most reliable objective evidence of contemporary values"—the actions of the Nation's legislatures. at As the Court emphasizes, the overall number of jurisdictions that currently disallow the execution of under-18 offenders is the same as the number that forbade the execution of mentally retarded offenders when was decided. *595 Ante, at 564. At present, 12 States and the District of Columbia do not have the death penalty, while an additional 18 States and the Federal Government authorize capital punishment but prohibit the execution of under-18 See ante, at 27-28 (Appendix A). And here, as in only a very small fraction of the States that permit capital punishment of offenders within the relevant class has actually carried out such an execution in recent history: Six States have executed under-18 offenders in the 16 years since while five States had executed mentally retarded offenders in the 13 years prior to See 536 U. S., ; V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-December 31, 04, No. 76, pp. 15-23 (05), available at http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec04.pdf (last updated Jan. 31, 05) (as visited Feb. 25, 05, and available in Clerk of Court's case file) (hereinafter Streib). In these respects, the objective evidence in this case is, indeed, "similar, and in some respects parallel to" the evidence upon which we relied in Ante, at 564. While the similarities between the two cases are undeniable, the objective evidence of national consensus is marginally weaker here. Most importantly, in there was significant evidence of opposition to the execution of the mentally retarded, but there was virtually no countervailing evidence of affirmative legislative support for this practice. Cf. 487 U. S., (attributing significance to the fact that "no legislature in this country has affirmatively and unequivocally endorsed" capital punishment of 15-year-old offenders). The States that permitted such executions did so only because they had not enacted any prohibitory legislation. Here, by contrast, at least eight States have current statutes that specifically set 16 or 17 as the minimum age at which *596 commission of a capital crime can expose the offender to the death penalty. See ante, at 579-580 (Appendix A).[*] Five of these eight States presently have one or more juvenile offenders on death row (six if respondent is included in the count), see Streib 24-31, and four of them have executed at least one under-18 offender in the past 15 years, see In all, there are currently over 70 juvenile offenders on death row in 12 different States (13 including respondent). See This evidence suggests some measure of continuing public support for the availability of the death penalty for 17-year-old capital murderers. Moreover, the Court in made clear that it was "not so much the number of [States forbidding execution of the mentally retarded] that [was] significant, but the consistency of the direction of change." In contrast to the trend in the States have not moved uniformly towards abolishing the juvenile death penalty. Instead, since our decision in two States have expressly reaffirmed their support for this practice by enacting statutes setting 16 as the minimum age for capital punishment. See Mo. Rev. Stat. § 565.0.2 (00); (a) (Lexis 04). Furthermore, as the Court emphasized in n. 18, the pace of legislative action in this context has been considerably slower than it was with regard to capital punishment of the mentally retarded. *597 In the 13 years between our decisions in and no fewer than 16 States banned the execution of mentally retarded See By comparison, since our decision 16 years ago in only four States that previously permitted the execution of under-18 offenders, plus the Federal Government, have legistlatively reversed course, and one additional State's high court has construed the State's death penalty statute not to apply to under-18 offenders, see The slower pace of change is no doubt partially attributable, as the Court says, to the fact that 12 States had already imposed a minimum age of 18 when was decided. See ante, at 566-. Nevertheless, the extraordinary wave of legislative action leading up to our decision in provided strong evidence that the country truly had set against capital punishment of the mentally retarded. Here, by contrast, the halting pace of change gives reason for pause. To the extent that the objective evidence supporting today's decision is similar to that in this merely highlights the fact that such evidence is not dispositive in either of the two cases. After all, as the Court today confirms, ante, at 563, 574-575, the Constitution requires that "`in the end our own judgment be brought to bear'" in deciding whether the Eighth Amendment forbids a particular punishment, (quoting U. S., ). This judgment is not merely a rubber stamp on the tally of legislative and jury actions. Rather, it is an integral part of the Eighth Amendment inquiry — and one that is entitled to independent weight in reaching our ultimate decision. Here, as in the objective evidence of a national consensus is weaker than in most prior cases in which the Court has struck down a particular punishment under the Eighth Amendment. See (striking down death penalty for rape of an adult *598 woman, where only one jurisdiction authorized such punishment); U. S., at 792 ; In my view, the objective evidence of national consensus, standing alone, was insufficient to dictate the Court's holding in Rather, the compelling moral proportionality argument against capital punishment of mentally retarded offenders played a decisive role in persuading the Court that the practice was inconsistent with the Eighth Amendment. Indeed, the force of the proportionality argument in significantly bolstered the Court's confidence that the objective evidence in that case did, in fact, herald the emergence of a genuine national consensus. Here, by contrast, the proportionality argument against the juvenile death penalty is so flawed that it can be given little, if any, analytical weight — it proves too weak to resolve the lingering ambiguities in the objective evidence of legislative consensus or to justify the Court's categorical rule. C Seventeen-year-old murderers must be categorically exempted from capital punishment, the Court says, because they "cannot with reliability be classified among the worst " Ante, at 569. That conclusion is premised on three perceived differences between "adults," who have already reached their 18th birthdays, and "juveniles," who have not. See ante, at 569-570. First, juveniles lack maturity and responsibility and are more reckless than adults. Second, juveniles are more vulnerable to outside influences because they have less control over their surroundings. And third, a juvenile's character is not as fully formed as that of an adult. Based on these characteristics, the Court determines that 17-year-old capital murderers are not as *599 blameworthy as adults guilty of similar crimes; that 17-year-olds are less likely than adults to be deterred by the prospect of a death sentence; and that it is difficult to conclude that a 17-year-old who commits even the most heinous of crimes is "irretrievably depraved." Ante, at 570-572. The Court suggests that "a rare case might arise in which a juvenile offender has sufficient psychological maturity, and at the same time demonstrates sufficient depravity, to merit a sentence of death." Ante, at 572. However, the Court argues that a categorical age-based prohibition is justified as a prophylactic rule because "[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability." Ante, at 572-573. It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles' comparative moral culpability. See, e. g., ; ("[T]he vicissitudes of youth bear directly on the young offender's culpability and responsibility for the crime"); -116 But even accepting this premise, the Court's proportionality argument fails to support its categorical rule. First, the Court adduces no evidence whatsoever in support of its sweeping conclusion, see ante, at 572, that it is only in "rare" cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the *600 Court's argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty. Similarly, the fact that the availability of the death penalty may be less likely to deter a juvenile from committing a capital crime does not imply that this threat cannot effectively deter some 17-year-olds from such an act. Surely there is an age below which no offender, no matter what his crime, can be deemed to have the cognitive or emotional maturity necessary to warrant the death penalty. But at least at the margins between adolescence and adulthood — and especially for 17-year-olds such as respondent — the relevant differences between "adults" and "juveniles" appear to be a matter of degree, rather than of kind. It follows that a legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case. Indeed, this appears to be just such a case. Christopher Simmons' murder of Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before he committed this crime, Simmons declared that he wanted to kill someone. On several occasions, he discussed with two friends (ages 15 and 16) his plan to burglarize a house and to murder the victim by tying the victim up and pushing him from a bridge. Simmons said they could "`get away with it'" because they were minors. Brief for Petitioner 3. In accord with this plan, Simmons and his 15-year-old accomplice broke into Mrs. Crook's home in the middle of the night, forced her from her bed, bound her, and drove her to a state park. There, they walked her to a railroad trestle spanning a river, "hog-tied" her with electrical cable, bound her face completely with duct tape, and pushed her, still alive, from the trestle. She drowned in the water below. One can *601 scarcely imagine the terror that this woman must have suffered throughout the ordeal leading to her death. Whatever can be said about the comparative moral culpability of 17-year-olds as a general matter, Simmons' actions unquestionably reflect "`a consciousness materially more "depraved" than that of' the average murderer." 536 U. S., ). And Simmons' prediction that he could murder with impunity because he had not yet turned 18 — though inaccurate — suggests that he did take into account the perceived risk of punishment in deciding whether to commit the crime. Based on this evidence, the sentencing jury certainly had reasonable grounds for concluding that, despite Simmons' youth, he "ha[d] sufficient psychological maturity" when he committed this horrific murder, and "at the same time demonstrate[d] sufficient depravity, to merit a sentence of death." Ante, at 572. The Court's proportionality argument suffers from a second and closely related defect: It fails to establish that the differences in maturity between 17-year-olds and young "adults" are both universal enough and significant enough to justify a bright-line prophylactic rule against capital punishment of the former. The Court's analysis is premised on differences in the aggregate between juveniles and adults, which frequently do not hold true when comparing individuals. Although it may be that many 17-year-old murderers lack sufficient maturity to deserve the death penalty, some juvenile murderers may be quite mature. Chronological age is not an unfailing measure of psychological development, and common experience suggests that many 17-year-olds are more mature than the average young "adult." In short, the class of offenders exempted from capital punishment by today's decision is too broad and too diverse to warrant a categorical prohibition. Indeed, the age-based line drawn by the Court is indefensibly arbitrary — it quite likely will protect a number of offenders who are mature enough to *602 deserve the death penalty and may well leave vulnerable many who are not. For purposes of proportionality analysis, 17-year-olds as a class are qualitatively and materially different from the mentally retarded. "Mentally retarded" offenders, as we understood that category in are defined by precisely the characteristics which render death an excessive punishment. A mentally retarded person is, "by definition," one whose cognitive and behavioral capacities have been proved to fall below a certain minimum. See 536 U.S., ; see also ; and n. 22 (leaving to the States the development of mechanisms to determine which offenders fall within the class exempt from capital punishment). Accordingly, for purposes of our decision in the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred by the death penalty than others. Rather, a mentally retarded offender is one whose demonstrated impairments make it so highly unlikely that he is culpable enough to deserve the death penalty or that he could have been deterred by the threat of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender's chronological age and the personal limitations which the Court believes make capital punishment excessive for 17-year-old murderers. Moreover, it defies common sense to suggest that 17-year-olds as a class are somehow equivalent to mentally retarded persons with regard to culpability or susceptibility to deterrence. Seventeen-year-olds may, on average, be less mature than adults, but that lesser maturity simply cannot be equated with the major, lifelong impairments suffered by the mentally retarded. The proportionality issues raised by the Court clearly implicate Eighth Amendment concerns. But these concerns may properly be addressed not by means of an arbitrary, categorical age-based rule, but rather through individualized *603 sentencing in which juries are required to give appropriate mitigating weight to the defendant's immaturity, his susceptibility to outside pressures, his cognizance of the consequences of his actions, and so forth. In that way the constitutional response can be tailored to the specific problem it is meant to remedy. The Eighth Amendment guards against the execution of those who are "insufficient[ly] culpab[le]," see ante, at 573, in significant part, by requiring sentencing that "reflect[s] a reasoned moral response to the defendant's background, character, and crime." Accordingly, the sentencer in a capital case must be permitted to give full effect to all constitutionally relevant mitigating evidence. See (04); A defendant's youth or immaturity is, of course, a paradigmatic example of such evidence. See -116. Although the prosecutor's apparent attempt to use respondent's youth as an aggravating circumstance in this case is troubling, that conduct was never challenged with specificity in the lower courts and is not directly at issue here. As the Court suggests, such "overreaching" would best be addressed, if at all, through a more narrowly tailored remedy. See ante, at 573. The Court argues that sentencing juries cannot accurately evaluate a youthful offender's maturity or give appropriate weight to the mitigating characteristics related to youth. But, again, the Court presents no real evidence — and the record appears to contain none — supporting this claim. Perhaps more importantly, the Court fails to explain why this duty should be so different from, or so much more difficult than, that of assessing and giving proper effect to any other qualitative capital sentencing factor. I would not be so quick to conclude that the constitutional safeguards, the sentencing juries, and the trial judges upon * which we place so much reliance in all capital cases are inadequate in this narrow context. D I turn, finally, to the Court's discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 Very few, if any, countries other than the United States now permit this practice in law or in fact. See ante, at 576-577. While acknowledging that the actions and views of other countries do not dictate the outcome of our Eighth Amendment inquiry, the Court asserts that "the overwhelming weight of international opinion against the juvenile death penalty does provide respected and significant confirmation for [its] own conclusions." Ante, at 578. Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court's moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases. Nevertheless, I disagree with JUSTICE SCALIA'S contention, post, at 622-628 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See 536 U.S., n. 21; 487 U. S., at 830-831, and n. 31 ; U. S., at 796-797, n. 22; U.S., n. 10 ; -103 This inquiry reflects the special character of the Eighth *605 Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 624-625 (SCALIA, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement — expressed in international law or in the domestic laws of individual countries — that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact. * * * In determining whether the Eighth Amendment permits capital punishment of a particular offense or class of offenders, we must look to whether such punishment is consistent with contemporary standards of decency. We are obligated to weigh both the objective evidence of societal values and our own judgment as to whether death is an excessive sanction in the context at hand. In the instant case, the objective evidence is inconclusive; standing alone, it does not demonstrate that our society has repudiated capital punishment of 17-year-old offenders in all cases. Rather, the actions of the Nation's legislatures suggest that, although a clear and durable national consensus against this practice may in time *606 emerge, that day has yet to arrive. By acting so soon after our decision in the Court both pre-empts the democratic debate through which genuine consensus might develop and simultaneously runs a considerable risk of inviting lower court reassessments of our Eighth Amendment precedents. To be sure, the objective evidence supporting today's decision is similar to (though marginally weaker than) the evidence before the Court in But could not have been decided as it was based solely on such evidence. Rather, the compelling proportionality argument against capital punishment of the mentally retarded played a decisive role in the Court's Eighth Amendment ruling. Moreover, the constitutional rule adopted in was tailored to this proportionality argument: It exempted from capital punishment a defined group of offenders whose proven impairments rendered it highly unlikely, and perhaps impossible, that they could act with the degree of culpability necessary to deserve death. And left to the States the development of mechanisms to determine which individual offenders fell within this class. In the instant case, by contrast, the moral proportionality arguments against the juvenile death penalty fail to support the rule the Court adopts today. There is no question that "the chronological age of a minor is a relevant mitigating factor of great weight," and that sentencing juries must be given an opportunity carefully to consider a defendant's age and maturity in deciding whether to assess the death penalty. But the mitigating characteristics associated with youth do not justify an absolute age limit. A legislature can reasonably conclude, as many have, that some 17-year-old murderers are mature enough to deserve the death penalty in an appropriate case. And nothing in the record before us suggests that sentencing juries are so unable accurately to assess a 17-year-old defendant's *607 maturity, or so incapable of giving proper weight to youth as a mitigating factor, that the Eighth Amendment requires the bright-line rule imposed today. In the end, the Court's flawed proportionality argument simply cannot bear the weight the Court would place upon it. Reasonable minds can differ as to the minimum age at which commission of a serious crime should expose the defendant to the death penalty, if at Many jurisdictions have abolished capital punishment altogether, while many others have determined that even the most heinous crime, if committed before the age of 18, should not be punishable by death. Indeed, were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18 in this context. But a significant number of States, including Missouri, have decided to make the death penalty potentially available for 17-year-old capital murderers such as respondent. Without a clearer showing that a genuine national consensus forbids the execution of such offenders, this Court should not substitute its own "inevitably subjective judgment" on how best to resolve this difficult moral question for the judgments of the Nation's democratically elected legislatures. See I respectfully dissent.

Justice Scalia

second_dissenting

Roper v. Simmons

2005-03-01

https://www.courtlistener.com/opinion/137749/roper-v-simmons/

https://www.courtlistener.com/api/rest/v3/clusters/137749/

2004-024

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ... ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define *608 and point out their duty in every particular case that comes before them." Id., at 471. Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years — not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 561 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 563 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. I In determining that capital punishment of offenders who committed murder before age 18 is "cruel and unusual" under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," ibid. (internal quotation marks omitted), that laws allowing such *609 executions contravene our modern "standards of decency,"[1]Trop v. Dulles, 356 U.S. 86, 101 (1958). We have held that this determination should be based on "objective indicia that reflect the public attitude toward a given sanction" — namely, "statutes passed by society's elected representatives." Stanford v. Kentucky, 492 U.S. 361, 370 (1989) (internal quotation marks omitted). As in Atkins v. Virginia, 536 U.S. 304, 312 (2002), the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States — or 47% of States that permit capital punishment — now have legislation prohibiting the execution of offenders under 18, and because all of 4 States have adopted such legislation since Stanford. See ante, at 565. Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. See Atkins, supra, at 342-345 (SCALIA, J., dissenting). Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time. In Coker v. Georgia, 433 U.S. 584, 595-596 (1977), a plurality concluded the Eighth Amendment prohibited capital punishment for rape of an adult woman where only one jurisdiction authorized such punishment. The plurality also observed that "[a]t no time in the last 50 years ha[d] a majority of *610 States authorized death as a punishment for rape." Id., at 593. In Ford v. Wainwright, 477 U.S. 399, 408 (1986), we held execution of the insane unconstitutional, tracing the roots of this prohibition to the common law and noting that "no State in the union permits the execution of the insane." In Enmund v. Florida, 458 U.S. 782, 792 (1982), we invalidated capital punishment imposed for participation in a robbery in which an accomplice committed murder, because 78% of all death penalty States prohibited this punishment. Even there we expressed some hesitation, because the legislative judgment was "neither `wholly unanimous among state legislatures,' . . . nor as compelling as the legislative judgments considered in Coker." Id., at 793. By contrast, agreement among 42% of death penalty States in Stanford, which the Court appears to believe was correctly decided at the time, ante, at 574, was insufficient to show a national consensus. See Stanford, supra, at 372. In an attempt to keep afloat its implausible assertion of national consensus, the Court throws overboard a proposition well established in our Eighth Amendment jurisprudence. "It should be observed," the Court says, "that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty ...; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles." Ante, at 574. The insinuation that the Court's new method of counting contradicts only "the Stanford Court" is misleading. None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. See Ford, supra, at 408, n. 2; Enmund, supra, at 789; Coker, supra, at 594. And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty *611 for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing — absolutely nothing — about consensus that offenders under 18 deserve special immunity from such a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today — lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to noncapital offenses. (They all do;[2] indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder.[3]) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation. Recognizing that its national-consensus argument was weak compared with our earlier cases, the Atkins Court found additional support in the fact that 16 States had prohibited execution of mentally retarded individuals since *612 Penry v. Lynaugh, 492 U.S. 302 (1989). Atkins, supra, at 314-316. Indeed, the Atkins Court distinguished Stanford on that very ground, explaining that "[a]lthough we decided Stanford on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty." 536 U.S., at 315, n. 18 (emphasis added). Now, the Court says a legislative change in four States is "significant" enough to trigger a constitutional prohibition.[4]Ante, at 566. It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate. I also doubt whether many of the legislators who voted to change the laws in those four States would have done so if they had known their decision would (by the pronouncement of this Court) be rendered irreversible. After all, legislative support for capital punishment, in any form, has surged and ebbed throughout our Nation's history. As JUSTICE O'CONNOR has explained: "The history of the death penalty instructs that there is danger in inferring a settled societal consensus from statistics like those relied on in this case. In 1846, Michigan became the first State to abolish the death penalty . . . . In succeeding decades, other American States continued the trend towards abolition . . . . Later, and particularly after World War II, there ensued a steady and dramatic decline in executions . . . . In the 1950's and 1960's, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968.... *613 "In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus.... We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject." Thompson v. Oklahoma, 487 U.S. 815, 854-855 (1988) (opinion concurring in judgment). Relying on such narrow margins is especially inappropriate in light of the fact that a number of legislatures and voters have expressly affirmed their support for capital punishment of 16- and 17-year-old offenders since Stanford. Though the Court is correct that no State has lowered its death penalty age, both the Missouri and Virginia Legislatures — which, at the time of Stanford, had no minimum age requirement — expressly established 16 as the minimum. Mo. Rev. Stat. § 565.020.2 (2000); Va. Code Ann. § 18.2-10(a) (Lexis 2004). The people of Arizona[5] and Florida[6] have *614 done the same by ballot initiative. Thus, even States that have not executed an under-18 offender in recent years unquestionably favor the possibility of capital punishment in some circumstances. The Court's reliance on the infrequency of executions, for under-18 murderers, ante, at 564-565, 567, credits an argument that this Court considered and explicitly rejected in Stanford. That infrequency is explained, we accurately said, both by "the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18," 492 U.S., at 374, and by the fact that juries are required at sentencing to consider the offender's youth as a mitigating factor, see Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982). Thus, "it is not only possible, but overwhelmingly probable, that the very considerations which induce [respondent] and [his] supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed." Stanford, supra, at 374. It is, furthermore, unclear that executions of the relevant age group have decreased since we decided Stanford. Between 1990 and 2003, 123 of 3,599 death sentences, or 3.4%, were given to individuals who committed crimes before reaching age 18. V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-September 30, 2004, No. 75, p. 9 (Table 3) (last updated Oct. 5, 2004), http://www.law.onu.edu/faculty/streib/documentsJuvDeathSept302004.pdf (all Internet materials as visited Jan. 12, 2005, and available in Clerk of Court's case file) (hereinafter Juvenile Death Penalty Today). *615 By contrast, only 2.1% of those sentenced to death between 1982 and 1988 committed the crimes when they were under 18. See Stanford, supra, at 373 (citing V. Streib, Imposition of Death Sentences for Juvenile Offenses, January 1, 1982, Through April 1, 1989, p. 2 (paper for Cleveland-Marshall College of Law, April 5, 1989)). As for actual executions of under-18 offenders, they constituted 2.4% of the total executions since 1973. Juvenile Death Penalty Today 4. In Stanford, we noted that only 2% of the executions between 1642 and 1986 were of under-18 offenders and found that that lower number did not demonstrate a national consensus against the penalty. 492 U.S., at 373-374 (citing V. Streib, Death Penalty for Juveniles 55, 57 (1987)). Thus, the numbers of under-18 offenders subjected to the death penalty, though low compared with adults, have either held steady or slightly increased since Stanford. These statistics in no way support the action the Court takes today. II Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's "`"own judgment"'" that murderers younger than 18 can never be as morally culpable as older counterparts. Ante, at 563 (quoting Atkins, 536 U. S., at 312 (in turn quoting Coker, 433 U. S., at 597 (plurality opinion))). The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating Stanford," ante, at 563. That supposed rule — which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views[7] — was repudiated in Stanford for the very good reason *616 that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?[8] The reason for insistence on legislative primacy is obvious and fundamental: "`[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'" Gregg v. Georgia, 428 U.S. 153, 175-176 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.) (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our determination of society's moral standards, consulted the practices of sentencing juries: Juries "`maintain a link between contemporary community values and the penal system'" that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15 (1968)). Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death *617 penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding. As THE CHIEF JUSTICE has explained: "[M]ethodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results." Atkins, supra, at 326-327 (dissenting opinion) (citing R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984)). In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends. Cf. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (SCALIA, J., concurring in judgment). We need not look far to find studies contradicting the Court's conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. Brief for APA as Amicus Curiae, O. T. 1989, No. 88-805 etc., p. 18. The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning *618 about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems." Id., at 19-20 (citations omitted). Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one. Legislatures "are better qualified to weigh and `evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.'" McCleskey v. Kemp, 481 U.S. 279, 319 (1987) (quoting Gregg, supra, at 186). Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are — at least sometimes — just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand — "[i]n chilling, callous terms," as the Court puts it, ante, at 556 — the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. Ante, at 556-557. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples *619 of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-year-old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. See Brief for Alabama et al. as Amici Curiae 9-10; see also Loggins v. State, 771 So. 2d 1070, 1074-1075 (Ala. Crim. App. 1999); Duncan v. State, 827 So. 2d 838, 840-841 (Ala. Crim. App. 1999). Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way — by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. That "almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent," ante, at 569, is patently irrelevant — and is yet another resurrection of an argument that this Court gave a decent burial in Stanford. (What kind of Equal Justice under Law is it that — without so much as a "Sorry about that" — gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in Stanford, 492 U. S., at 374, it is "absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards." Serving on a jury or entering into marriage also involve decisions far more sophisticated than the simple decision not to take another's life. *620 Moreover, the age statutes the Court lists "set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests." Ibid. The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. See Eddings, 455 U.S., at 115-117. In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e. g., Bellotti v. Baird, 443 U.S. 622, 643-644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74-75 (1976). It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood. The Court concludes, however, ante, at 572-573, that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with "mak[ing] the difficult and uniquely human judgments that defy codification and that `buil[d] discretion, equity, and flexibility into a legal system.'" McCleskey, supra, at 311 (quoting H. Kalven & H. Zeisel, The American Jury 498 (1966)). The Court says, ante, at 573, that juries will be unable to appreciate the significance of a defendant's youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary, the Court itself acknowledges that the execution of under-18 offenders is "infrequent" even in the States "without *621 a formal prohibition on executing juveniles," ante, at 564, suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor. Nor does the Court suggest a stopping point for its reasoning. If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See Atkins, 536 U. S., at 321. Why not take other mitigating factors, such as considerations of childhood abuse or poverty, away from juries as well? Surely jurors "overpower[ed]" by "the brutality or cold-blooded nature" of a crime, ante, at 573, could not adequately weigh these mitigating factors either. The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that "[r]etribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished," ante, at 571, is simply an extension of the earlier, false generalization that youth always defeats culpability. The Court claims that "juveniles will be less susceptible to deterrence," ibid., because "`[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent,'" ante, at 572 (quoting Thompson, 487 U. S., at 837). The Court unsurprisingly finds no support for this astounding proposition, save its own case law. The facts of this very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him by assuring them that they could "get away with it" because they were minors. State ex rel. Simmons v. Roper, 112 S.W.3d 397, 419 (Mo. 2003) (Price, J., dissenting). This fact may have influenced the jury's decision to impose capital punishment despite Simmons' age. *622 Because the Court refuses to entertain the possibility that its own unsubstantiated generalization about juveniles could be wrong, it ignores this evidence entirely. III Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage. The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered into force Sept. 2, 1990,] which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." Ante, at 576 (emphasis added). The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at 567, 576, which the Senate ratified only subject to a reservation that reads: "The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, p. 11 (1992). Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President — those actors our Constitution empowers to enter into treaties, see Art. II, § 2 — have declined to join and ratify treaties prohibiting *623 execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of parole is itself a severe sanction," ante, at 572, gives little comfort. It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation — of whatever tyrannical political makeup and with however subservient or incompetent a court system — in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason. I suspect it is most of them. See, e. g., R. Simon & D. Blaskovich, A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over 25, 26, 29 (2002). To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost *624 always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here. More fundamentally, however, the basic premise of the Court's argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law — including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, 367 U.S. 643, 655 (1961), it was "unique to American jurisprudence." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been "universally rejected" by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries "appears to have any alternative form of discipline for police that is effective in preventing search violations." Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399-400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. See C. Slobogin, Criminal Procedure: Regulation of Police Investigation 550 (3d ed. 2002). Canada rarely excludes evidence and will only do so if admission will "bring the administration of justice into disrepute." Id., at 550-551 (internal quotation marks omitted). The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the "fair trial" requirement in Article 6, § 1, of the European Convention on *625 Human Rights. See Slobogin, supra, at 551; Bradley, supra, at 377-378. The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion. . . ." Amdt. 1. Most other countries — including those committed to religious neutrality — do not insist on the degree of separation between church and state that this Court requires. For example, whereas "we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 842 (1995) (citing cases), countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that "the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding." S. Monsma & J. Soper, The Challenge of Pluralism: Church and State in Five Democracies 207 (1997); see also id., at 67, 103, 176. England permits the teaching of religion in state schools. Id., at 142. Even in France, which is considered "America's only rival in strictness of church-state separation," "[t]he practice of contracting for educational services provided by Catholic schools is very widespread." C. Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies 110 (2000). And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. See Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 1320 (2004); Center for Reproductive *626 Rights, The World's Abortion Laws (June 2004), http:// www.reproductiverights.org/pub_fac_abortion_laws.html. Though the Government and amici in cases following Roe v. Wade, 410 U.S. 113 (1973), urged the Court to follow the international community's lead, these arguments fell on deaf ears. See McCrudden, A Part of the Main? The Physician-Assisted Suicide Cases and Comparative Law Methodology in the United States Supreme Court, in Law at the End of Life: The Supreme Court and Assisted Suicide 125, 129-130 (C. Schneider ed. 2000). The Court's special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. If we applied that approach today, our task would be an easy one. As we explained in Harmelin v. Michigan, 501 U.S. 957, 973-974 (1991), the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments "`out of [the Judges'] Power'" — that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge. The Court has, however — I think wrongly — long rejected a purely originalist approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War — and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental *627 jurists — a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect. See Law Commission, Double Jeopardy and Prosecution Appeals, LAW COM No. 267, Cm 5048, p. 6, ¶ 1.19 (Mar. 2001); J. Spencer, The English System in European Criminal Procedures 142, 204, and n. 239 (M. Delmas-Marty & J. Spencer eds. 2002). We would also curtail our right to jury trial in criminal cases since, despite the jury system's deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury. See D. Feldman, England and Wales, in Criminal Procedure: A Worldwide Study 91, 114-115 (C. Bradley ed. 1999). The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.[9] *628 The Court responds that "[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." Ante, at 578. To begin with, I do not believe that approval by "other nations and peoples" should buttress our commitment to American principles any more than (what should logically follow) disapproval by "other nations and peoples" should weaken that commitment. More importantly, however, the Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our "fidelity" to the Constitution, our "pride in its origins," and "our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice — a practice still engaged in by a large majority of the relevant States — of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources "affirm," rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. "Acknowledgment" of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment — which is surely what it parades as today. IV To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its *629 flagrant disregard of our precedent in Stanford. Until today, we have always held that "it is this Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). That has been true even where "`changes in judicial doctrine' ha[ve] significantly undermined" our prior holding, United States v. Hatter, 532 U.S. 557, 567 (2001) (quoting Hatter v. United States, 64 F.3d 647, 650 (CA Fed. 1995)), and even where our prior holding "appears to rest on reasons rejected in some other line of decisions," Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent. One must admit that the Missouri Supreme Court's action, and this Court's indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of "law" ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court's pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment? However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions *630 just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court's decisions without any force — especially since the "evolution" of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, "updating" the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since "[t]he judiciary ha[s] neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 But Hamilton had in mind a traditional judiciary, "bound down by strict rules and precedents which serve to define *608 and point out their duty in every particular case that comes before them." Bound down, indeed. What a mockery today's opinion makes of Hamilton's expectation, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years — not, mind you, that this Court's decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to "the evolving standards of decency," ante, at 561 of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter: "[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Ante, at 563 The Court thus proclaims itself sole arbiter of our Nation's moral standards — and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent. I In determining that capital punishment of offenders who committed murder before age 18 is "cruel and unusual" under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," that laws allowing such *609 executions contravene our modern "standards of We have held that this determination should be based on "objective indicia that reflect the public attitude toward a given sanction" — namely, "statutes passed by society's elected representatives." As in the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in because 18 States — or 47% of States that permit capital punishment — now have legislation prohibiting the execution of offenders under 18, and because all of 4 States have adopted such legislation since See ante, at 565. Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. See Our previous cases have required overwhelming opposition to a challenged practice, generally over a long period of time. In a plurality concluded the Eighth Amendment prohibited capital punishment for rape of an adult woman where only one jurisdiction authorized such punishment. The plurality also observed that "[a]t no time in the last 50 years ha[d] a majority of *610 States authorized death as a punishment for rape." In we held execution of the insane unconstitutional, tracing the roots of this prohibition to the common law and noting that "no State in the union permits the execution of the insane." In we invalidated capital punishment imposed for participation in a robbery in which an accomplice committed murder, because 78% of all death penalty States prohibited this punishment. Even there we expressed some hesitation, because the legislative judgment was "neither `wholly unanimous among state legislatures,' nor as compelling as the legislative judgments considered in" By contrast, agreement among 42% of death penalty States in which the Court appears to believe was correctly decided at the time, ante, at 574, was insufficient to show a national consensus. See In an attempt to keep afloat its implausible assertion of national consensus, the Court throws overboard a proposition well established in our Eighth Amendment jurisprudence. "It should be observed," the Court says, "that the Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles." Ante, at 574. The insinuation that the Court's new method of counting contradicts only "the Court" is misleading. None of our cases dealing with an alleged constitutional limitation upon the death penalty has counted, as States supporting a consensus in favor of that limitation, States that have eliminated the death penalty entirely. See at n. 2; ; And with good reason. Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty *611 for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing — absolutely nothing — about consensus that offenders under 18 deserve special immunity from such a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today — lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to noncapital offenses. (They all do;[2] indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder.[3]) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation. Recognizing that its national-consensus argument was weak compared with our earlier cases, the Court found additional support in the fact that 16 States had prohibited execution of mentally retarded individuals since *612 Indeed, the Court distinguished on that very ground, explaining that "[a]lthough we decided on the same day as Penry, apparently only two state legislatures have raised the threshold age for imposition of the death penalty." n. 18 Now, the Court says a legislative change in four States is "significant" enough to trigger a constitutional prohibition.[4]Ante, at 566. It is amazing to think that this subtle shift in numbers can take the issue entirely off the table for legislative debate. I also doubt whether many of the legislators who voted to change the laws in those four States would have done so if they had known their decision would (by the pronouncement of this Court) be rendered irreversible. After all, legislative support for capital punishment, in any form, has surged and ebbed throughout our Nation's history. As JUSTICE O'CONNOR has explained: "The history of the death penalty instructs that there is danger in inferring a settled societal consensus from statistics like those relied on in this case. In 1846, Michigan became the first State to abolish the death penalty In succeeding decades, other American States continued the trend towards abolition Later, and particularly after World War II, there ensued a steady and dramatic decline in executions In the 1950's and 1960's, more States abolished or radically restricted capital punishment, and executions ceased completely for several years beginning in 1968. *613 "In 1972, when this Court heard arguments on the constitutionality of the death penalty, such statistics might have suggested that the practice had become a relic, implicitly rejected by a new societal consensus. We now know that any inference of a societal consensus rejecting the death penalty would have been mistaken. But had this Court then declared the existence of such a consensus, and outlawed capital punishment, legislatures would very likely not have been able to revive it. The mistaken premise of the decision would have been frozen into constitutional law, making it difficult to refute and even more difficult to reject." Relying on such narrow margins is especially inappropriate in light of the fact that a number of legislatures and voters have expressly affirmed their support for capital punishment of 16- and 17-year-old offenders since Though the Court is correct that no State has lowered its death penalty age, both the Missouri and Virginia Legislatures — which, at the time of had no minimum age requirement — expressly established 16 as the minimum. (00); (a) (Lexis 04). The people of Arizona[5] and Florida[6] have *614 done the same by ballot initiative. Thus, even States that have not executed an under-18 offender in recent years unquestionably favor the possibility of capital punishment in some circumstances. The Court's reliance on the infrequency of executions, for under-18 murderers, ante, at 564-565, credits an argument that this Court considered and explicitly rejected in That infrequency is explained, we accurately said, both by "the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18," and by the fact that juries are required at sentencing to consider the offender's youth as a mitigating factor, see Thus, "it is not only possible, but overwhelmingly probable, that the very considerations which induce [respondent] and [his] supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed." It is, furthermore, unclear that executions of the relevant age group have decreased since we decided Between 1990 and 03, 123 of 3,599 death sentences, or 3.4%, were given to individuals who committed crimes before reaching age 18. V. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-September 30, 04, No. 75, p. 9 (Table 3) (last updated Oct. 5, 04), http://www.law.onu.edu/faculty/streib/documentsJuvDeathSept3004.pdf (all Internet materials as visited Jan. 12, 05, and available in Clerk of Court's case file) (hereinafter Juvenile Death Penalty Today). *615 By contrast, only 2.1% of those sentenced to death between 1982 and 1988 committed the crimes when they were under 18. See at 373 ). As for actual executions of under-18 offenders, they constituted 2.4% of the total executions since 1973. Juvenile Death Penalty Today 4. In we noted that only 2% of the executions between 1642 and 1986 were of under-18 offenders and found that that lower number did not demonstrate a national consensus against the penalty. -374 ). Thus, the numbers of under-18 offenders subjected to the death penalty, though low compared with adults, have either held steady or slightly increased since These statistics in no way support the action the Court takes today. II Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's "`"own judgment"'" that murderers younger than 18 can never be as morally culpable as older counterparts. Ante, at 563 (quoting 536 U. S., at (in turn quoting )). The Court claims that this usurpation of the role of moral arbiter is simply a "retur[n] to the rul[e] established in decisions predating" ante, at 563. That supposed rule — which is reflected solely in dicta and never once in a holding that purports to supplant the consensus of the American people with the Justices' views[7] — was repudiated in for the very good reason *616 that it has no foundation in law or logic. If the Eighth Amendment set forth an ordinary rule of law, it would indeed be the role of this Court to say what the law is. But the Court having pronounced that the Eighth Amendment is an ever-changing reflection of "the evolving standards of decency" of our society, it makes no sense for the Justices then to prescribe those standards rather than discern them from the practices of our people. On the evolving-standards hypothesis, the only legitimate function of this Court is to identify a moral consensus of the American people. By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the Nation?[8] The reason for insistence on legislative primacy is obvious and fundamental: "`[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.'" ). For a similar reason we have, in our determination of society's moral standards, consulted the practices of sentencing juries: Juries "`maintain a link between contemporary community values and the penal system'" that this Court cannot claim for itself. ). Today's opinion provides a perfect example of why judges are ill equipped to make the type of legislative judgments the Court insists on making here. To support its opinion that States should be prohibited from imposing the death *617 penalty on anyone who committed murder before age 18, the Court looks to scientific and sociological studies, picking and choosing those that support its position. It never explains why those particular studies are methodologically sound; none was ever entered into evidence or tested in an adversarial proceeding. As THE CHIEF JUSTICE has explained: "[M]ethodological and other errors can affect the reliability and validity of estimates about the opinions and attitudes of a population derived from various sampling techniques. Everything from variations in the survey methodology, such as the choice of the target population, the sampling design used, the questions asked, and the statistical analyses used to interpret the data can skew the results." ; 1 C. Turner & E. Martin, Surveying Subjective Phenomena (1984)). In other words, all the Court has done today, to borrow from another context, is to look over the heads of the crowd and pick out its friends. Cf. We need not look far to find studies contradicting the Court's conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in the APA found a "rich body of research" showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. Brief for APA as Amicus Curiae, O. T. 1989, No. 88-805 etc., p. 18. The APA brief, citing psychology treatises and studies too numerous to list here, asserted: "[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning *618 about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems." Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one. Legislatures "are better qualified to weigh and `evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.'" (quoting ). Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are — at least sometimes — just as culpable as adults. Christopher Simmons, who was only seven months shy of his 18th birthday when he murdered Shirley Crook, described to his friends beforehand — "[i]n chilling, callous terms," as the Court puts it, ante, at 556 — the murder he planned to commit. He then broke into the home of an innocent woman, bound her with duct tape and electrical wire, and threw her off a bridge alive and conscious. Ante, at 556-557. In their amici brief, the States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional examples *619 of murders committed by individuals under 18 that involve truly monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-year-old picked up a female hitchhiker, threw bottles at her, and kicked and stomped her for approximately 30 minutes until she died. They then sexually assaulted her lifeless body and, when they were finished, threw her body off a cliff. They later returned to the crime scene to mutilate her corpse. See Brief for Alabama et al. as Amici Curiae 9-10; see also ; Other examples in the brief are equally shocking. Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way — by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. That "almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent," ante, at 569, is patently irrelevant — and is yet another resurrection of an argument that this Court gave a decent burial in (What kind of Equal Justice under Law is it that — without so much as a "Sorry about that" — gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in 492 U. S., it is "absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards." Serving on a jury or entering into marriage also involve decisions far more sophisticated than the simple decision not to take another's life. *6 Moreover, the age statutes the Court lists "set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests." The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. See -117. In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e. g., ; Planned Parenthood of Central It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood. The Court concludes, however, ante, at 572-573, that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. This startling conclusion undermines the very foundations of our capital sentencing system, which entrusts juries with "mak[ing] the difficult and uniquely human judgments that defy codification and that `buil[d] discretion, equity, and flexibility into a legal system.'" McCleskey, The Court says, ante, at 573, that juries will be unable to appreciate the significance of a defendant's youth when faced with details of a brutal crime. This assertion is based on no evidence; to the contrary, the Court itself acknowledges that the execution of under-18 offenders is "infrequent" even in the States "without *621 a formal prohibition on executing juveniles," ante, at 564, suggesting that juries take seriously their responsibility to weigh youth as a mitigating factor. Nor does the Court suggest a stopping point for its reasoning. If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See Why not take other mitigating factors, such as considerations of childhood abuse or poverty, away from juries as well? Surely jurors "overpower[ed]" by "the brutality or cold-blooded nature" of a crime, ante, at 573, could not adequately weigh these mitigating factors either. The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that "[r]etribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished," ante, at 571, is simply an extension of the earlier, false generalization that youth always defeats culpability. The Court claims that "juveniles will be less susceptible to deterrence," because "`[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent,'" ante, at 572 (quoting U. S., at 837). The Court unsurprisingly finds no support for this astounding proposition, save its own case law. The facts of this very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him by assuring them that they could "get away with it" because they were minors. State ex rel. This fact may have influenced the jury's decision to impose capital punishment despite Simmons' age. *622 Because the Court refuses to entertain the possibility that its own unsubstantiated generalization about juveniles could be wrong, it ignores this evidence entirely. III Though the views of our own citizens are essentially irrelevant to the Court's decision today, the views of other countries and the so-called international community take center stage. The Court begins by noting that "Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered into force Sept. 2, 1990,] which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." Ante, at 576 The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at 576, which the Senate ratified only subject to a reservation that reads: "The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, p. 11 (1992). Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President — those actors our Constitution empowers to enter into treaties, see Art. II, 2 — have declined to join and ratify treaties prohibiting *623 execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of parole is itself a severe sanction," ante, at 572, gives little comfort. It is interesting that whereas the Court is not content to accept what the States of our Federal Union say, but insists on inquiring into what they do (specifically, whether they in fact apply the juvenile death penalty that their laws allow), the Court is quite willing to believe that every foreign nation — of whatever tyrannical political makeup and with however subservient or incompetent a court system — in fact adheres to a rule of no death penalty for offenders under 18. Nor does the Court inquire into how many of the countries that have the death penalty, but have forsworn (on paper at least) imposing that penalty on offenders under 18, have what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no possibility of mitigation by the sentencing authority, for youth or any other reason. I suspect it is most of them. See, e. g., R. Simon & D. Blaskovich, A Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies, and Public Attitudes the World Over 25, 26, 29 To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost *624 always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. The foreign authorities, in other words, do not even speak to the issue before us here. More fundamentally, however, the basic premise of the Court's argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law — including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in it was "unique to American jurisprudence." Since then a categorical exclusionary rule has been "universally rejected" by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries "appears to have any alternative form of discipline for police that is effective in preventing search violations." Mapp Goes Abroad, England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. See C. Criminal Procedure: Regulation of Police Investigation 550 Canada rarely excludes evidence and will only do so if admission will "bring the administration of justice into disrepute." The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the "fair trial" requirement in Article 6, 1, of the European Convention on *625 Human Rights. See ; The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that "Congress shall make no law respecting an establishment of religion." Amdt. 1. Most other countries — including those committed to religious neutrality — do not insist on the degree of separation between church and state that this Court requires. For example, whereas "we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions," countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that "the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding." S. Monsma & J. Soper, The Challenge of Pluralism: Church and State in Five Democracies 7 ; see also England permits the teaching of religion in state schools. Even in France, which is considered "America's only rival in strictness of church-state separation," "[t]he practice of contracting for educational services provided by Catholic schools is very widespread." C. Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies 110 (00). And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. See Larsen, Importing Constitutional Norms from a "Wider Civilization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 13 (04); Center for Reproductive *626 Rights, The World's Abortion Laws (June 04), http:// www.reproductiverights.org/pub_fac_abortion_laws.html. Though the Government and amici in cases following urged the Court to follow the international community's lead, these arguments fell on deaf ears. See McCrudden, A Part of the Main? The Physician-Assisted Suicide Cases and Comparative Law Methodology in the United States Supreme Court, in Law at the End of Life: The Supreme Court and Assisted Suicide 125, 129-130 (C. Schneider ed. 00). The Court's special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion. It is of course true that we share a common history with the United Kingdom, and that we often consult English sources when asked to discern the meaning of a constitutional text written against the backdrop of 18th-century English law and legal thought. If we applied that approach today, our task would be an easy one. As we explained in the "Cruell and Unusuall Punishments" provision of the English Declaration of Rights was originally meant to describe those punishments "`out of [the Judges'] Power'" — that is, those punishments that were not authorized by common law or statute, but that were nonetheless administered by the Crown or the Crown's judges. Under that reasoning, the death penalty for under-18 offenders would easily survive this challenge. The Court has, however — I think wrongly — long rejected a purely originalist approach to our Eighth Amendment, and that is certainly not the approach the Court takes today. Instead, the Court undertakes the majestic task of determining (and thereby prescribing) our Nation's current standards of decency. It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War — and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental *627 jurists — a legal, political, and social culture quite different from our own. If we took the Court's directive seriously, we would also consider relaxing our double jeopardy prohibition, since the British Law Commission recently published a report that would significantly extend the rights of the prosecution to appeal cases where an acquittal was the result of a judge's ruling that was legally incorrect. See Law Commission, Double Jeopardy and Prosecution Appeals, LAW COM No. 267, Cm 5048, p. 6, ¶ 1.19 ; J. Spencer, The English System in European Criminal Procedures 142, 4, and n. 239 We would also curtail our right to jury trial in criminal cases since, despite the jury system's deep roots in our shared common law, England now permits all but the most serious offenders to be tried by magistrates without a jury. See D. Feldman, England and Wales, in Criminal Procedure: A Worldwide Study 91, 114-115 The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.[9] *628 The Court responds that "[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." Ante, at 578. To begin with, I do not believe that approval by "other nations and peoples" should buttress our commitment to American principles any more than (what should logically follow) disapproval by "other nations and peoples" should weaken that commitment. More importantly, however, the Court's statement flatly misdescribes what is going on here. Foreign sources are cited today, not to underscore our "fidelity" to the Constitution, our "pride in its origins," and "our own [American] heritage." To the contrary, they are cited to set aside the centuries-old American practice — a practice still engaged in by a large majority of the relevant States — of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources "affirm," rather than repudiate, is the Justices' own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The Court's parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. "Acknowledgment" of foreign approval has no place in the legal opinion of this Court unless it is part of the basis for the Court's judgment — which is surely what it parades as today. IV To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for its *629 flagrant disregard of our precedent in Until today, we have always held that "it is this Court's prerogative alone to overrule one of its precedents." State Oil That has been true even where "`changes in judicial doctrine' ha[ve] significantly undermined" our prior holding, United ), and even where our prior holding "appears to rest on reasons rejected in some other line of decisions," Rodriguez de Today, however, the Court silently approves a state-court decision that blatantly rejected controlling precedent. One must admit that the Missouri Supreme Court's action, and this Court's indulgent reaction, are, in a way, understandable. In a system based upon constitutional and statutory text democratically adopted, the concept of "law" ordinarily signifies that particular words have a fixed meaning. Such law does not change, and this Court's pronouncement of it therefore remains authoritative until (confessing our prior error) we overrule. The Court has purported to make of the Eighth Amendment, however, a mirror of the passing and changing sentiment of American society regarding penology. The lower courts can look into that mirror as well as we can; and what we saw 15 years ago bears no necessary relationship to what they see today. Since they are not looking at the same text, but at a different scene, why should our earlier decision control their judgment? However sound philosophically, this is no way to run a legal system. We must disregard the new reality that, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the current Justices' current personal views about penology, they purport to be nothing more than a snapshot of American public opinion at a particular point in time (with the timeframes now shortened to a mere 15 years). We must treat these decisions *630 just as though they represented real law, real prescriptions democratically adopted by the American people, as conclusively (rather than sequentially) construed by this Court. Allowing lower courts to reinterpret the Eighth Amendment whenever they decide enough time has passed for a new snapshot leaves this Court's decisions without any force — especially since the "evolution" of our Eighth Amendment is no longer determined by objective criteria. To allow lower courts to behave as we do, "updating" the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos.

Justice Rehnquist

majority

Wilson v. Layne

1999-05-24

https://www.courtlistener.com/opinion/118289/wilson-v-layne/

https://www.courtlistener.com/api/rest/v3/clusters/118289/

1998-058

While executing an arrest warrant in a private home, police officers invited representatives of the media to accompany them. We hold that such a "media ride-along" does violate the Fourth Amendment, but that because the state *606 of the law was not clearly established at the time the search in this case took place, the officers are entitled to the defense of qualified immunity. I In early 1992, the Attorney General of the United States approved "Operation Gunsmoke," a special national fugitive apprehension program in which United States Marshals worked with state and local police to apprehend dangerous criminals. The "Operation Gunsmoke" policy statement explained that the operation was to concentrate on "armed individuals wanted on federal and/or state and local warrants for serious drug and other violent felonies." App. 15. This effective program ultimately resulted in over 3,000 arrests in 40 metropolitan areas. Brief for Federal Respondents Layne et al. 2. One of the dangerous fugitives identified as a target of "Operation Gunsmoke" was Dominic Wilson, the son of petitioners Charles and Geraldine Wilson. Dominic Wilson had violated his probation on previous felony charges of robbery, theft, and assault with intent to rob, and the police computer listed "caution indicators" that he was likely to be armed, to resist arrest, and to "assaul[t] police." App. 40. The computer also listed his address as 909 North StoneStreet Avenue in Rockville, Maryland. Unknown to the police, this was actually the home of petitioners, Dominic Wilson's parents. Thus, in April 1992, the Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson, one for each of his probation violations. The warrants were each addressed to "any duly authorized peace officer," and commanded such officers to arrest him and bring him "immediately" before the Circuit Court to answer an indictment as to his probation violation. The warrants made no mention of media presence or assistance.[1] *607 In the early morning hours of April 16, 1992, a Gunsmoke team of Deputy United States Marshals and Montgomery County Police officers assembled to execute the Dominic Wilson warrants. The team was accompanied by a reporter and a photographer from the Washington Post, who had been invited by the Marshals to accompany them on their mission as part of a Marshals Service ride-along policy. At around 6:45 a.m., the officers, with media representatives in tow, entered the dwelling at 909 North StoneStreet Avenue in the Lincoln Park neighborhood of Rockville. Petitioners Charles and Geraldine Wilson were still in bed when they heard the officers enter the home. Petitioner Charles Wilson, dressed only in a pair of briefs, ran into the living room to investigate. Discovering at least five men in street clothes with guns in his living room, he angrily demanded that they state their business, and repeatedly cursed the officers. Believing him to be an angry Dominic Wilson, the officers quickly subdued him on the floor. Geraldine Wilson next entered the living room to investigate, wearing only a nightgown. She observed her husband being restrained by the armed officers. When their protective sweep was completed, the officers learned that Dominic Wilson was not in the house, and they departed. During the time that the officers were in the home, the Washington Post photographer took numerous pictures. The print reporter was also apparently in the living room observing the confrontation between the police and *608 Charles Wilson. At no time, however, were the reporters involved in the execution of the arrest warrant. Brief for Federal Respondents Layne et al. 4. The Washington Post never published its photographs of the incident. Petitioners sued the law enforcement officials in their personal capacities for money damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) (the U. S. Marshals Service respondents), and Rev. Stat. § 1979, 42 U.S. C. § 1983 (the Montgomery County Sheriff's Department respondents). They contended that the officers' actions in bringing members of the media to observe and record the attempted execution of the arrest warrant violated their Fourth Amendment rights. The District Court denied respondents' motion for summary judgment on the basis of qualified immunity. On interlocutory appeal to the Court of Appeals, a divided panel reversed and held that respondents were entitled to qualified immunity. The case was twice reheard en banc, where a divided Court of Appeals again upheld the defense of qualified immunity. The Court of Appeals declined to decide whether the actions of the police violated the Fourth Amendment. It concluded instead that because no court had held (at the time of the search) that media presence during a police entry into a residence violated the Fourth Amendment, the right allegedly violated by respondents was not "clearly established" and thus qualified immunity was proper. 141 F.3d 111 (CA4 1998). Five judges dissented, arguing that the officers' actions did violate the Fourth Amendment, and that the clearly established protections of the Fourth Amendment were violated in this case. Id., at 119 (opinion of Murnaghan, J.) Recognizing a split among the Circuits on this issue, we granted certiorari in this case and another raising the same question, Hanlon v. Berger, 525 U.S. 981 (1998), and now affirm the Court of Appeals, although by different reasoning. *609 II Petitioners sued the federal officials under Bivens and the state officials under § 1983. Both Bivens and § 1983 allow a plaintiff to seek money damages from government officials who have violated his Fourth Amendment rights. See § 1983; Bivens, supra, at 397. But government officials performing discretionary functions generally are granted a qualified immunity and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Although this case involves suits under both § 1983 and Bivens, the qualified immunity analysis is identical under either cause of action. See, e. g., Graham v. Connor, 490 U.S. 386, 394, n. 9 (1989); Malley v. Briggs, 475 U.S. 335, 340, n. 2 (1986). A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, ante, at 290. This order of procedure is designed to "spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Siegert v. Gilley, 500 U.S. 226, 232 (1991). Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public. See County of Sacramento v. Lewis, 523 U.S. 833, 840-842, n. 5 (1998). We now turn to the Fourth Amendment question. In 1604, an English court made the now-famous observation that "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." Semayne's Case, 5 Co. Rep. 91a, 91b, 77 *610 Eng. Rep. 194, 195 (K. B.). In his Commentaries on the Laws of England, William Blackstone noted that "the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome . . . . For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private." 4 Commentaries 223 (1765-1769). The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U. S. Const., Amdt. 4 (emphasis added). See also United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 313 (1972) ("[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed"). Our decisions have applied these basic principles of the Fourth Amendment to situations, like the one in this case, in which police enter a home under the authority of an arrest warrant in order to take into custody the suspect named in the warrant. In Payton v. New York, 445 U.S. 573, 602 (1980), we noted that although clear in its protection of the home, the common-law tradition at the time of the drafting of the Fourth Amendment was ambivalent on the question whether police could enter a home without a warrant. We were ultimately persuaded that the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic" meant that absent a warrant or exigent circumstances, police could not *611 enter a home to make an arrest. Id., at 601, 603-604. We decided that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Id., at 603. Here, of course, the officers had such a warrant, and they were undoubtedly entitled to enter the Wilson home in order to execute the arrest warrant for Dominic Wilson. But it does not necessarily follow that they were entitled to bring a newspaper reporter and a photographer with them. In Horton v. California, 496 U.S. 128, 140 (1990), we held "[i]f the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more." While this does not mean that every police action while inside a home must be explicitly authorized by the text of the warrant, see Michigan v. Summers, 452 U.S. 692, 705 (1981) (Fourth Amendment allows temporary detainer of homeowner while police search the home pursuant to warrant), the Fourth Amendment does require that police actions in execution of a warrant be related to the objectives of the authorized intrusion, see Arizona v. Hicks, 480 U.S. 321, 325 (1987). See also Maryland v. Garrison, 480 U.S. 79, 87 (1987) ("[T]he purposes justifying a police search strictly limit the permissible extent of the search"). Certainly the presence of reporters inside the home was not related to the objectives of the authorized intrusion. Respondents concede that the reporters did not engage in the execution of the warrant, and did not assist the police in their task. The reporters therefore were not present for any reason related to the justification for police entry into the home—the apprehension of Dominic Wilson. This is not a case in which the presence of the third parties directly aided in the execution of the warrant. Where the police enter a home under the authority of a warrant to *612 search for stolen property, the presence of third parties for the purpose of identifying the stolen property has long been approved by this Court and our common-law tradition. See, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 1067 (K. B. 1765) (in search for stolen goods case, "`[t]he owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant to shew them to the officer, who must see that they answer the description") (quoted with approval in Boyd v. United States, 116 U.S. 616, 628 (1886)). Respondents argue that the presence of the Washington Post reporters in the Wilsons' home nonetheless served a number of legitimate law enforcement purposes. They first assert that officers should be able to exercise reasonable discretion about when it would "further their law enforcement mission to permit members of the news media to accompany them in executing a warrant." Brief for Federal Respondents Layne et al. 15. But this claim ignores the importance of the right of residential privacy at the core of the Fourth Amendment. It may well be that media ride-alongs further the law enforcement objectives of the police in a general sense, but that is not the same as furthering the purposes of the search. Were such generalized "law enforcement objectives" themselves sufficient to trump the Fourth Amendment, the protections guaranteed by that Amendment's text would be significantly watered down. Respondents next argue that the presence of third parties could serve the law enforcement purpose of publicizing the government's efforts to combat crime, and facilitate accurate reporting on law enforcement activities. There is certainly language in our opinions interpreting the First Amendment which points to the importance of "the press" in informing the general public about the administration of criminal justice. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491— 492 (1975), for example, we said "in a society in which each individual has but limited time and resources with which to *613 observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations." See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-573 (1980). No one could gainsay the truth of these observations, or the importance of the First Amendment in protecting press freedom from abridgment by the government. But the Fourth Amendment also protects a very important right, and in the present case it is in terms of that right that the media ridealongs must be judged. Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home. And even the need for accurate reporting on police issues in general bears no direct relation to the constitutional justification for the police intrusion into a home in order to execute a felony arrest warrant. Finally, respondents argue that the presence of third parties could serve in some situations to minimize police abuses and protect suspects, and also to protect the safety of the officers. While it might be reasonable for police officers to themselves videotape home entries as part of a "quality control" effort to ensure that the rights of homeowners are being respected, or even to preserve evidence, cf. Ohio v. Robinette, 519 U.S. 33, 35 (1996) (noting the use of a "mounted video camera" to record the details of a routine traffic stop), such a situation is significantly different from the media presence in this case. The Washington Post reporters in the Wilsons' home were working on a story for their own purposes. They were not present for the purpose of protecting the officers, much less the Wilsons. A private photographer was acting for private purposes, as evidenced in part by the fact that the newspaper and not the police retained the photographs. Thus, although the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible, see supra, at 611-612, the presence of these third parties was not. *614 The reasons advanced by respondents, taken in their entirety, fall short of justifying the presence of media inside a home. We hold that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.[2] III Since the police action in this case violated petitioners' Fourth Amendment right, we now must decide whether this right was clearly established at the time of the search. See Siegert, 500 U. S., at 232-233. As noted above, Part II, supra, government officials performing discretionary functions generally are granted a qualified immunity and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U. S., at 818. What this means in practice is that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing Harlow, supra, at 819); see also Graham v. Connor, 490 U. S., at 397. In Anderson, we explained that what "clearly established" means in this context depends largely "upon the level of generality at which the relevant `legal rule' is to be identified." 483 U.S., at 639. "[C]learly established" for purposes of *615 qualified immunity means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." Id., at 640 (citations omitted); see also United States v. Lanier, 520 U.S. 259, 270 (1997). It could plausibly be asserted that any violation of the Fourth Amendment is "clearly established," since it is clearly established that the protections of the Fourth Amendment apply to the actions of police. Some variation of this theory of qualified immunity is urged upon us by petitioners, Brief for Petitioners 37, and seems to have been at the core of the dissenting opinion in the Court of Appeals, see 141 F.3d, at 123. However, as we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established. 483 U.S., at 641. In this case, the appropriate question is the objective inquiry whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed. Cf. ibid. We hold that it was not unreasonable for a police officer in April 1992 to have believed that bringing media observers along during the execution of an arrest warrant (even in a home) was lawful. First, the constitutional question presented by this case is by no means open and shut. The Fourth Amendment protects the rights of homeowners from entry without a warrant, but there was a warrant here. The question is whether the invitation to the media exceeded the scope of the search authorized by the warrant. Accurate media coverage of police activities serves an important public purpose, and it is not obvious from the general principles *616 of the Fourth Amendment that the conduct of the officers in this case violated the Amendment. Second, although media ride-alongs of one sort or another had apparently become a common police practice,[3] in 1992 there were no judicial opinions holding that this practice became unlawful when it entered a home. The only published decision directly on point was a state intermediate court decision which, though it did not engage in an extensive Fourth Amendment analysis, nonetheless held that such conduct was not unreasonable. Prahl v. Brosamle, 98 Wis. 2d 130, 154— 155, 295 N.W.2d 768, 782 (App. 1980). From the federal courts, the parties have only identified two unpublished District Court decisions dealing with media entry into homes, each of which upheld the search on unorthodox non-Fourth Amendment right to privacy theories. Moncrief v. Hanton, 10 Media L. Rptr. 1620 (ND Ohio 1984); Higbee v. TimesAdvocate, 5 Media L. Rptr. 2372 (SD Cal. 1980). These cases, of course, cannot "clearly establish" that media entry into homes during a police ride-along violates the Fourth Amendment. At a slightly higher level of generality, petitioners point to Bills v. Aseltine, 958 F.2d 697 (CA6 1992), in which the Court of Appeals for the Sixth Circuit held that there were material issues of fact precluding summary judgment on the question whether police exceeded the scope of a search warrant by allowing a private security guard to participate in the search to identify stolen property other than that described in the warrant. Id., at 709. Bills, which was decided a mere five weeks before the events of this case, did anticipate today's holding that police may not bring along third parties during an entry into a private home pursuant *617 to a warrant for purposes unrelated to those justifying the warrant. Id., at 706. However, we cannot say that even in light of Bills, the law on third-party entry into homes was clearly established in April 1992. Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident that clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful. Finally, important to our conclusion was the reliance by the United States marshals in this case on a Marshals Service ride-along policy that explicitly contemplated that media who engaged in ride-alongs might enter private homes with their cameras as part of fugitive apprehension arrests.[4] The Montgomery County Sheriff's Department also at this time had a ride-along program that did not expressly prohibit media entry into private homes. Deposition of Sheriff Raymond M. Kight, in No. PJM-94-1718, p. 8. Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law. But here the state of the law as to third parties accompanying police on home entries was at best undeveloped, and it was not unreasonable for law enforcement officers to look and rely on their formal ridealong policies. Given such an undeveloped state of the law, the officers in this case cannot have been "expected to predict the future course of constitutional law." Procunier v. Navarette, 434 *618 U. S. 555, 562 (1978). See also Wood v. Strickland, 420 U.S. 308, 321 (1975); Pierson v. Ray, 386 U.S. 547, 557 (1967). Between the time of the events of this case and today's decision, a split among the Federal Circuits in fact developed on the question whether media ride-alongs that enter homes subject the police to money damages. See 141 F.3d, at 118— 119; Ayeni v. Mottola, 35 F.3d 680 (CA2 1994), cert. denied, 514 U.S. 1062 (1995); Parker v. Boyer, 93 F.3d 445 (CA8 1996), cert. denied, 519 U.S. 1148 (1997); Berger v. Hanlon, 129 F.3d 505 (CA9 1997), cert. granted, 525 U.S. 981 (1998). If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, concurring in part and dissenting in part. Like every other federal appellate judge who has addressed the question, I share the Court's opinion that it violates the Fourth Amendment for police to bring members of the media or other third parties into a private dwelling during the execution of a warrant unless the homeowner has consented or the presence of the third parties is in aid of the execution of the warrant. I therefore join Parts I and II of the Court's opinion. In my view, however, the homeowner's right to protection against this type of trespass was clearly established long before April 16, 1992. My sincere respect for the competence of the typical member of the law enforcement profession precludes my assent to the suggestion that "a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful." Ante, at 615. I therefore disagree with the Court's *619 resolution of the conflict in the Circuits on the qualified immunity issue.[1] The clarity of the constitutional rule, a federal statute (18 U.S. C. § 3105), common-law decisions, and the testimony of the senior law enforcement officer all support my position that it has long been clearly established that officers may not bring third parties into private homes to witness the execution of a warrant. By contrast, the Court's opposing view finds support in the following sources: its bare assertion that the constitutional question "is by no means open and shut," ante, at 615; three judicial opinions that did not directly address the constitutional question, ante, at 616; and a public relations booklet prepared by someone in the United States Marshals Service that never mentions allowing representatives of the media to enter private property without the owner's consent, ante, at 617. I In its decision today the Court has not announced a new rule of constitutional law. Rather, it has refused to recognize an entirely unprecedented request for an exception to a well-established principle. Police action in the execution of a warrant must be strictly limited to the objectives of the authorized intrusion. That principle, like the broader protection provided by the Fourth Amendment itself, represents the confluence of two important sources: our English forefathers' traditional respect for the sanctity of the private *620 home and the American colonists' hatred of the general warrant. The contours of the rule are fairly described by the Court, ante, at 609-611 of its opinion, and in the cases that it cites on those pages. All of those cases were decided before 1992. None of those cases—nor, indeed, any other of which I am aware—identified any exception to the rule of law that the Court repeats today. In fact, the Court's opinion fails to identify a colorable rationale for any such exception. Respondents' position on the merits consisted entirely of their unpersuasive factual submission that the presence of representatives of the news media served various legitimate— albeit nebulous—law enforcement purposes. The Court's cogent rejection of those post hoc rationalizations cannot be characterized as the announcement of a new rule of law. During my service on the Court, I have heard lawyers argue scores of cases raising Fourth Amendment issues. Generally speaking, the Members of the Court have been sensitive to the needs of the law enforcement community. In virtually all of them at least one Justice thought that the police conduct was reasonable. In fact, in only a handful did the Court unanimously find a Fourth Amendment violation. That the Court today speaks with a single voice on the merits of the constitutional question is unusual and certainly lends support to the notion that the question is indeed "open and shut." Ante, at 615. But the more important basis for my opinion is that it should have been perfectly obvious to the officers that their "invitation to the media exceeded the scope of the search authorized by the warrant." Ibid. Despite reaffirming that clear rule, the Court nonetheless finds that the mere presence of a warrant rendered the officers' conduct reasonable. The Court fails to cite a single case that even arguably supports the proposition that using official power to enable news photographers and reporters to enter a private home for purposes unrelated to the execution of a warrant could *621 be regarded as a "reasonable" invasion of either property or privacy. II The absence of judicial opinions expressly holding that police violate the Fourth Amendment if they bring media representatives into private homes provides scant support for the conclusion that in 1992 a competent officer could reasonably believe that it would be lawful to do so. Prior to our decision in United States v. Lanier, 520 U.S. 259 (1997), no judicial opinion specifically held that it was unconstitutional for a state judge to use his official power to extort sexual favors from a potential litigant. Yet, we unanimously concluded that the defendant had fair warning that he was violating his victim's constitutional rights. Id., at 271 ("The easiest cases don't even arise" (citations and internal quotation marks omitted)). Nor am I persuaded that the absence of rulings on the precise Fourth Amendment issue presented in this case can plausibly be explained by the assumption that the police practice was common. I assume that the practice of allowing media personnel to "ride along" with police officers was common, but that does not mean that the officers routinely allowed the media to enter homes without the consent of the owners. As the Florida Supreme Court noted in Florida Publishing Co. v. Fletcher, 340 So. 2d 914, 918 (1976), there has long been a widespread practice for firefighters to allow photographers to enter disaster areas to take pictures, for example, of the interior of buildings severely damaged by fire. But its conclusion that such media personnel were not trespassers rested on a doctrine of implied consent[2]—a theory *622 wholly inapplicable to forcible entries in connection with the execution of a warrant.[3] In addition to this case, the Court points to three lower court opinions—none of which addresses the Fourth Amendment—as the ostensible basis for a reasonable officer's belief that the rule in Semayne's Case[4] was ripe for reevaluation.[5] See ante, at 616. Two of the cases were decided in 1980 and the third in 1984. In view of the clear restatement of the rule in the later opinions of this Court, cited ante, at 611, those three earlier decisions could not possibly provide a *623 basis for a claim by the police that they reasonably relied on judicial recognition of an exception to the basic rule that the purposes of the police intrusion strictly limit its scope. That the two federal decisions were not officially reported makes such theoretical reliance especially anomalous.[6] Moreover, as the Court acknowledges, the claim rejected in each of those cases was predicated on the media's alleged violation of the plaintiffs' "unorthodox non-Fourth Amendment right to privacy theories," ante, at 616, rather than a claim that the officers violated the Fourth Amendment by allowing the press to observe the execution of the warrant. Moncrief v. Hanton, 10 Media L. Rptr. 1620 (ND Ohio 1984); Higbee v. Times-Advocate, 5 Media L. Rptr. 2372 (SD Cal. 1980). As for the other case, Prahl v. Brosamle, 98 Wis. 2d 130, 295 N.W.2d 768 (App. 1980)—cited by the Court, ante, at 616, for the proposition that the officer's conduct was "not unreasonable"—it actually held that the defendants' motion to dismiss should have been denied because the allegations supported the conclusion that the officer committed a trespass when he allowed a third party to enter the plaintiff's property.[7] Since that conclusion was fully consistent with a *624 number of common-law cases holding that similar conduct constituted a trespass,[8] it surely does not provide any support for an officer's assumption that a similar trespass would be lawful. Far better evidence of an officer's reasonable understanding of the relevant law is provided by the testimony of the Sheriff of Montgomery County, the commanding officer of three of the respondents: "`We would never let a civilian into a home. . . . That's just not allowed.' " Brief for Petitioners 41. III The most disturbing aspect of the Court's ruling on the qualified immunity issue is its reliance on a document discussing "ride-alongs" apparently prepared by an employee in the public relations office of the United States Marshals Service. The text of the document, portions of which are set out in an appendix, makes it quite clear that its author was not a lawyer, but rather a person concerned with developing the proper public image of the Service, with a special interest in creating a favorable impression with the Congress. Although the document occupies 14 pages in the joint *625 appendix and suggests handing out free Marshals Service T-shirts and caps to "grease the skids," it contains no discussion of the conditions which must be satisfied before a newsperson may be authorized to enter private property during the execution of a warrant. App. 12. There are guidelines about how officers should act and speak in front of the camera, and the document does indicate that "the camera" should not enter a private home until a "signal" is given. Id., at 7. It does not, however, purport to give any guidance to the marshals regarding when such a signal should be given, whether it should ever be given without the consent of the homeowner, or indeed on how to carry out any part of their law enforcement mission. The notion that any member of that well-trained cadre of professionals would rely on such a document for guidance in the performance of dangerous law enforcement assignments is too farfetched to merit serious consideration. * * * The defense of qualified immunity exists to protect reasonable officers from personal liability for official actions later found to be in violation of constitutional rights that were not clearly established. The conduct in this case, as the Court itself reminds us, contravened the Fourth Amendment's core protection of the home. In shielding this conduct as if it implicated only the unsettled margins of our jurisprudence, the Court today authorizes one free violation of the wellestablished rule it reaffirms. I respectfully dissent. APPENDIX TO OPINION OF STEVENS, J. "MEDIA RIDE-ALONGS "The U. S. Marshals Service, like all federal agencies, ultimately serves the needs and interests of the American public *626 when it accomplishes its designated duties. Keeping the public adequately informed of what the Service does can be viewed as a duty in its own right, and we depend on the news media to accomplish that. "Media `ride-alongs' are one effective method to promote an accurate picture of Deputy Marshals at work. Ride-alongs, as the name implies, are simply opportunities for reporters and camera crews to go along with Deputies on operational missions so they can see, and record, what actually happens. The result is usually a very graphic and dynamic look at the operational activities of the Marshals Service, which is subsequently aired on TV or printed in a newspaper, magazine, or book. "However, successful ride-alongs don't just `happen' in a spontaneous fashion. They require careful planning and attention to detail to ensure that all goes smoothly and that the media receive an accurate picture of how the Marshals Service operates. This booklet describes considerations that are important in nearly every ride-along." App. 4. "Establish Ground Rules "Another good idea—actually, it's an essential one—is to establish ground rules at the start and convey them to the reporter and camera person. Address such things as what can be covered with cameras and when, any privacy restrictions that may be encountered, and interview guidelines. "Emphasize the need for safety considerations and explain any dangers that might be involved. Make the ground rules realistic but balanced—remember, the media will want good action footage, not just a mop-up scene. If the arrest is planned to take place inside a house or building, agree ahead of time on when the camera can enter and who will give the signal." Id., at 7. "The very best planning won't result in a good ride-along if the Marshals Service personnel involved do not do their part. It's a case of actions speaking as loudly as words, and both *627 are important in getting the best media exposure possible." Id., at 9. "`Waving the Flag' "One action of special consequence is `waving the flag' of the Marshals Service. This is accomplished when Deputies can easily be recognized as USMS Deputies because they are wearing raid jackets, prominently displaying their badges, or exhibiting other easily identifiable marks of the Service. We want the public to know who you are and what kind of job you do. That is one of the goals of the ride-along. So having Deputy Marshals easily identified as such on camera is not just a whim—it's important to the overall success of the ride-along. "Of course, how the Deputies act and what they say is also crucial. During the ride-along virtually any statement made by Deputies just might end up as a quote, attributed to the person who made it. Sometimes that could prove embarrassing. A Deputy must try to visualize what his or her words will look like in a newspaper or sound like on TV. Being pleasant and professional at all times is key, and that includes not being drawn into statements of personal opinion or inappropriate comments. Using common sense is the rule." Id., at 9-10. "You also need to find out when the coverage will air or end up in print. Ask the reporter if he or she can keep you informed on that matter. You might `grease the skids' for this by offering the reporter, camera person, or other media representatives involved a memento of the Marshals Service. Marshals Service caps, mugs, T-shirts, and the like can help establish a rapport with a reporter that can benefit you in the future." Id., at 12. "Getting to the Final Product "Naturally, it's important to see the final product of the ridealong when it airs on TV or appears in the newspaper. You *628 should arrange to videotape any TV news coverage or clip the resulting newspaper stories and send a copy of the videotape or news clipping to the Office of Congressional and Public Affairs." Id., at 13.

While executing an arrest warrant in a private home, police officers invited representatives of the media to accompany them. We hold that such a "media ride-along" does violate the Fourth Amendment, but that because the state *606 of the law was not clearly established at the time the search in this case took place, the officers are entitled to the defense of qualified immunity. I In early the Attorney General of the United States approved "Operation Gunsmoke," a special national fugitive apprehension program in which United States Marshals worked with state and local police to apprehend dangerous criminals. The "Operation Gunsmoke" policy statement explained that the operation was to concentrate on "armed individuals wanted on federal and/or state and local warrants for serious drug and other violent felonies." App. 15. This effective program ultimately resulted in over 3,000 arrests in 40 metropolitan areas. Brief for Federal Respondents Layne et al. 2. One of the dangerous fugitives identified as a target of "Operation Gunsmoke" was Dominic Wilson, the son of petitioners Charles and Geraldine Wilson. Dominic Wilson had violated his probation on previous felony charges of robbery, theft, and assault with intent to rob, and the police computer listed "caution indicators" that he was likely to be armed, to resist arrest, and to "assaul[t] police." App. 40. The computer also listed his address as 909 North StoneStreet Avenue in Rockville, Maryland. Unknown to the police, this was actually the home of petitioners, Dominic Wilson's parents. Thus, in April the Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson, one for each of his probation violations. The warrants were each addressed to "any duly authorized peace officer," and commanded such officers to arrest him and bring him "immediately" before the Circuit Court to answer an indictment as to his probation violation. The warrants made no mention of media presence or assistance.[1] *607 In the early morning hours of April 16, a Gunsmoke team of Deputy United States Marshals and Montgomery County Police officers assembled to execute the Dominic Wilson warrants. The team was accompanied by a reporter and a photographer from the Washington Post, who had been invited by the Marshals to accompany them on their mission as part of a Marshals Service ride-along policy. At around 6:45 a.m., the officers, with media representatives in tow, entered the dwelling 09 North StoneStreet Avenue in the Lincoln Park neighborhood of Rockville. Petitioners Charles and Geraldine Wilson were still in bed when they heard the officers enter the home. Petitioner Charles Wilson, dressed only in a pair of briefs, ran into the living room to investigate. Discovering at least five men in street clothes with guns in his living room, he angrily demanded that they state their business, and repeatedly cursed the officers. Believing him to be an angry Dominic Wilson, the officers quickly subdued him on the floor. Geraldine Wilson next entered the living room to investigate, wearing only a nightgown. She observed her husband being restrained by the armed officers. When their protective sweep was completed, the officers learned that Dominic Wilson was not in the house, and they departed. During the time that the officers were in the home, the Washington Post photographer took numerous pictures. The print reporter was also apparently in the living room observing the confrontation between the police and *608 Charles Wilson. At no time, however, were the reporters involved in the execution of the arrest warrant. Brief for Federal Respondents Layne et al. 4. The Washington Post never published its photographs of the incident. Petitioners sued the law enforcement officials in their personal capacities for money damages under and Rev. Stat. 1979, 42 U.S. C. 1983 (the Montgomery County Sheriff's Department respondents). They contended that the officers' actions in bringing members of the media to observe and record the attempted execution of the arrest warrant violated their Fourth Amendment rights. The District Court denied respondents' motion for summary judgment on the basis of qualified immunity. On interlocutory appeal to the Court of Appeals, a divided panel reversed and held that respondents were entitled to qualified immunity. The case was twice reheard en banc, where a divided Court of Appeals again upheld the defense of qualified immunity. The Court of Appeals declined to decide whether the actions of the police violated the Fourth Amendment. It concluded instead that because no court had held (at the time of the search) that media presence during a police entry into a residence violated the Fourth Amendment, the right allegedly violated by respondents was not "clearly established" and thus qualified immunity was proper. Five judges dissented, arguing that the officers' actions did violate the Fourth Amendment, and that the clearly established protections of the Fourth Amendment were violated in this case. Recognizing a split among the Circuits on this issue, we granted certiorari in this case and another raising the same question, and now affirm the Court of Appeals, although by different reasoning. *609 Petitioners sued the federal officials under and the state officials under 1983. Both and 1983 allow a plaintiff to seek money damages from government officials who have violated his Fourth Amendment rights. See 1983; But government officials performing discretionary functions generally are granted a qualified immunity and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Although this case involves suits under both 1983 and the qualified immunity analysis is identical under either cause of action. See, e. g., ; A court evaluating a claim of qualified immunity "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed to determine whether that right was clearly established at the time of the alleged violation." Conn v. Gabbert, ante, at 290. This order of procedure is designed to "spare a defendant not only unwarranted liability, but unwarranted demands customarily imposed upon those defending a long drawn out lawsuit." Deciding the constitutional question before addressing the qualified immunity question also promotes clarity in the legal standards for official conduct, to the benefit of both the officers and the general public. See County of We now turn to the Fourth Amendment question. In 1604, an English court made the now-famous observation that "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." Semayne's Case, 5 Co. Rep. 91a, 91b, 77 *610 Eng. Rep. 194, 195 (K. B.). In his Commentaries on the Laws of England, William Blackstone noted that "the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of antient Rome For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private." 4 Commentaries 223 (1765-1769). The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U. S. Const., Amdt. 4 (emphasis added). See also United Our decisions have applied these basic principles of the Fourth Amendment to situations, like the one in this case, in which police enter a home under the authority of an arrest warrant in order to take into custody the suspect named in the warrant. In we noted that although clear in its protection of the home, the common-law tradition at the time of the drafting of the Fourth Amendment was ambivalent on the question whether police could enter a home without a warrant. We were ultimately persuaded that the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic" meant that absent a warrant or exigent circumstances, police could not *611 enter a home to make an arrest. We decided that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Here, of course, the officers had such a warrant, and they were undoubtedly entitled to enter the Wilson home in order to execute the arrest warrant for Dominic Wilson. But it does not necessarily follow that they were entitled to bring a newspaper reporter and a photographer with them. In we held "[i]f the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more." While this does not mean that every police action while inside a home must be explicitly authorized by the text of the warrant, see the Fourth Amendment does require that police actions in execution of a warrant be related to the objectives of the authorized intrusion, see See also Certainly the presence of reporters inside the home was not related to the objectives of the authorized intrusion. Respondents concede that the reporters did not engage in the execution of the warrant, and did not assist the police in their task. The reporters therefore were not present for any reason related to the justification for police entry into the home—the apprehension of Dominic Wilson. This is not a case in which the presence of the third parties directly aided in the execution of the warrant. Where the police enter a home under the authority of a warrant to *612 search for stolen property, the presence of third parties for the purpose of identifying the stolen property has long been approved by this Court and our common-law tradition. See, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 1067 (K. B. 1765) (in search for stolen goods case, "`[t]he owner must swear that the goods are lodged in such a place. He must attend at the execution of the warrant to shew them to the officer, who must see that they answer the description") ). Respondents argue that the presence of the Washington Post reporters in the Wilsons' home nonetheless served a number of legitimate law enforcement purposes. They first assert that officers should be able to exercise reasonable discretion about when it would "further their law enforcement mission to permit members of the news media to accompany them in executing a warrant." Brief for Federal Respondents Layne et al. 15. But this claim ignores the importance of the right of residential privacy at the core of the Fourth Amendment. It may well be that media ride-alongs further the law enforcement objectives of the police in a general sense, but that is not the same as furthering the purposes of the search. Were such generalized "law enforcement objectives" themselves sufficient to trump the Fourth Amendment, the protections guaranteed by that Amendment's text would be significantly watered down. Respondents next argue that the presence of third parties could serve the law enforcement purpose of publicizing the government's efforts to combat crime, and facilitate accurate reporting on law enforcement activities. There is certainly language in our opinions interpreting the First Amendment which points to the importance of "the press" in informing the general public about the administration of criminal justice. In Cox Broadcasting for example, we said "in a society in which each individual has but limited time and resources with which to *613 observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations." See also Richmond Newspapers, No one could gainsay the truth of these observations, or the importance of the First Amendment in protecting press freedom from abridgment by the government. But the Fourth Amendment also protects a very important right, and in the present case it is in terms of that right that the media ridealongs must be judged. Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home. And even the need for accurate reporting on police issues in general bears no direct relation to the constitutional justification for the police intrusion into a home in order to execute a felony arrest warrant. Finally, respondents argue that the presence of third parties could serve in some situations to minimize police abuses and protect suspects, and also to protect the safety of the officers. While it might be reasonable for police officers to themselves videotape home entries as part of a "quality control" effort to ensure that the rights of homeowners are being respected, or even to preserve evidence, cf. such a situation is significantly different from the media presence in this case. The Washington Post reporters in the Wilsons' home were working on a story for their own purposes. They were not present for the purpose of protecting the officers, much less the Wilsons. A private photographer was acting for private purposes, as evidenced in part by the fact that the newspaper and not the police retained the photographs. Thus, although the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible, see the presence of these third parties was not. *614 The reasons advanced by respondents, taken in their entirety, fall short of justifying the presence of media inside a home. We hold that it is a violation of the Fourth Amendment for police to bring members of the media or other third parties into a home during the execution of a warrant when the presence of the third parties in the home was not in aid of the execution of the warrant.[2] I Since the police action in this case violated petitioners' Fourth Amendment right, we now must decide whether this right was clearly established at the time of the search. See 500 U. S., at -233. As noted above, Part government officials performing discretionary functions generally are granted a qualified immunity and are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U. S., at What this means in practice is that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." 483 U.S. 6, (citing ); see also 490 U. S., In Anderson, we explained that what "clearly established" means in this context depends largely "upon the level of generality at which the relevant `legal rule' is to be identified." 483 U.S., at "[C]learly established" for purposes of *615 qualified immunity means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent." ; see also United It could plausibly be asserted that any violation of the Fourth Amendment is "clearly established," since it is clearly established that the protections of the Fourth Amendment apply to the actions of police. Some variation of this theory of qualified immunity is urged upon us by petitioners, Brief for Petitioners 37, and seems to have been at the core of the dissenting opinion in the Court of Appeals, see However, as we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly In this case, the appropriate question is the objective inquiry whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed. Cf. We hold that it was not unreasonable for a police officer in April to have believed that bringing media observers along during the execution of an arrest warrant (even in a home) was lawful. First, the constitutional question presented by this case is by no means open and shut. The Fourth Amendment protects the rights of homeowners from entry without a warrant, but there was a warrant here. The question is whether the invitation to the media exceeded the scope of the search authorized by the warrant. Accurate media coverage of police activities serves an important public purpose, and it is not obvious from the general principles *616 of the Fourth Amendment that the conduct of the officers in this case violated the Amendment. Second, although media ride-alongs of one sort or another had apparently become a common police practice,[3] in there were no judicial opinions holding that this practice became unlawful when it entered a home. The only published decision directly on point was a state intermediate court decision which, though it did not engage in an extensive Fourth Amendment analysis, nonetheless held that such conduct was not unreasonable. From the federal courts, the parties have only identified two unpublished District Court decisions dealing with media entry into homes, each of which upheld the search on unorthodox non-Fourth Amendment right to privacy theories. Moncrief v. Hanton, 10 Media L. Rptr. 1620 (ND Ohio 1984); Higbee v. TimesAdvocate, 5 Media L. Rptr. 2372 These cases, of course, cannot "clearly establish" that media entry into homes during a police ride-along violates the Fourth Amendment. At a slightly higher level of generality, petitioners point to in which the Court of Appeals for the Sixth Circuit held that there were material issues of fact precluding summary judgment on the question whether police exceeded the scope of a search warrant by allowing a private security guard to participate in the search to identify stolen property other than that described in the warrant. Bills, which was decided a mere five weeks before the events of this case, did anticipate today's holding that police may not bring along third parties during an entry into a private home pursuant *617 to a warrant for purposes unrelated to those justifying the warrant. However, we cannot say that even in light of Bills, the law on third-party entry into homes was clearly established in April Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident that clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful. Finally, important to our conclusion was the reliance by the United States marshals in this case on a Marshals Service ride-along policy that explicitly contemplated that media who engaged in ride-alongs might enter private homes with their cameras as part of fugitive apprehension arrests.[4] The Montgomery County Sheriff's Department also at this time had a ride-along program that did not expressly prohibit media entry into private homes. Deposition of Sheriff Raymond M. Kight, in No. PJM-94-1718, p. 8. Such a policy, of course, could not make reasonable a belief that was contrary to a decided body of case law. But here the state of the law as to third parties accompanying police on home entries was at best undeveloped, and it was not unreasonable for law enforcement officers to look and rely on their formal ridealong policies. Given such an undeveloped state of the law, the officers in this case cannot have been "expected to predict the future course of constitutional law." See also ; Between the time of the events of this case and today's decision, a split among the Federal Circuits in fact developed on the question whether media ride-alongs that enter homes subject the police to money damages. See — 119; F.3d 680 cert. denied, ; cert. denied, ; cert. granted, If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy. For the foregoing reasons, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, concurring in part and dissenting in part. Like every other federal appellate judge who has addressed the question, I share the Court's opinion that it violates the Fourth Amendment for police to bring members of the media or other third parties into a private dwelling during the execution of a warrant unless the homeowner has consented or the presence of the third parties is in aid of the execution of the warrant. I therefore join Parts I and of the Court's opinion. In my view, however, the homeowner's right to protection against this type of trespass was clearly established long before April 16, My sincere respect for the competence of the typical member of the law enforcement profession precludes my assent to the suggestion that "a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful." Ante, at 615. I therefore disagree with the Court's *619 resolution of the conflict in the Circuits on the qualified immunity issue.[1] The clarity of the constitutional rule, a federal statute (18 U.S. C. 3105), common-law decisions, and the testimony of the senior law enforcement officer all support my position that it has long been clearly established that officers may not bring third parties into private homes to witness the execution of a warrant. By contrast, the Court's opposing view finds support in the following sources: its bare assertion that the constitutional question "is by no means open and shut," ante, at 615; three judicial opinions that did not directly address the constitutional question, ante, at 616; and a public relations booklet prepared by someone in the United States Marshals Service that never mentions allowing representatives of the media to enter private property without the owner's consent, ante, at 617. I In its decision today the Court has not announced a new rule of constitutional law. Rather, it has refused to recognize an entirely unprecedented request for an exception to a well-established principle. Police action in the execution of a warrant must be strictly limited to the objectives of the authorized intrusion. That principle, like the broader protection provided by the Fourth Amendment itself, represents the confluence of two important sources: our English forefathers' traditional respect for the sanctity of the private *620 home and the American colonists' hatred of the general warrant. The contours of the rule are fairly described by the Court, ante, at 609-611 of its opinion, and in the cases that it cites on those pages. All of those cases were decided before None of those cases—nor, indeed, any other of which I am aware—identified any exception to the rule of law that the Court repeats today. In fact, the Court's opinion fails to identify a colorable rationale for any such exception. Respondents' position on the merits consisted entirely of their unpersuasive factual submission that the presence of representatives of the news media served various legitimate— albeit nebulous—law enforcement purposes. The Court's cogent rejection of those post hoc rationalizations cannot be characterized as the announcement of a new rule of law. During my service on the Court, I have heard lawyers argue scores of cases raising Fourth Amendment issues. Generally speaking, the Members of the Court have been sensitive to the needs of the law enforcement community. In virtually all of them at least one Justice thought that the police conduct was reasonable. In fact, in only a handful did the Court unanimously find a Fourth Amendment violation. That the Court today speaks with a single voice on the merits of the constitutional question is unusual and certainly lends support to the notion that the question is indeed "open and shut." Ante, at 615. But the more important basis for my opinion is that it should have been perfectly obvious to the officers that their "invitation to the media exceeded the scope of the search authorized by the warrant." Despite reaffirming that clear rule, the Court nonetheless finds that the mere presence of a warrant rendered the officers' conduct reasonable. The Court fails to cite a single case that even arguably supports the proposition that using official power to enable news photographers and reporters to enter a private home for purposes unrelated to the execution of a warrant could *621 be regarded as a "reasonable" invasion of either property or privacy. The absence of judicial opinions expressly holding that police violate the Fourth Amendment if they bring media representatives into private homes provides scant support for the conclusion that in a competent officer could reasonably believe that it would be lawful to do so. Prior to our decision in United no judicial opinion specifically held that it was unconstitutional for a state judge to use his official power to extort sexual favors from a potential litigant. Yet, we unanimously concluded that the defendant had fair warning that he was violating his victim's constitutional rights. Nor am I persuaded that the absence of rulings on the precise Fourth Amendment issue presented in this case can plausibly be explained by the assumption that the police practice was common. I assume that the practice of allowing media personnel to "ride along" with police officers was common, but that does not mean that the officers routinely allowed the media to enter homes without the consent of the owners. As the Florida Supreme Court noted in Florida Publishing there has long been a widespread practice for firefighters to allow photographers to enter disaster areas to take pictures, for example, of the interior of buildings severely damaged by fire. But its conclusion that such media personnel were not trespassers rested on a doctrine of implied consent[2]—a theory *622 wholly inapplicable to forcible entries in connection with the execution of a warrant.[3] In addition to this case, the Court points to three lower court opinions—none of which addresses the Fourth Amendment—as the ostensible basis for a reasonable officer's belief that the rule in Semayne's Case[4] was ripe for reevaluation.[5] See ante, at 616. Two of the cases were decided in 1980 and the third in 1984. In view of the clear restatement of the rule in the later opinions of this Court, cited ante, at 611, those three earlier decisions could not possibly provide a *623 basis for a claim by the police that they reasonably relied on judicial recognition of an exception to the basic rule that the purposes of the police intrusion strictly limit its scope. That the two federal decisions were not officially reported makes such theoretical reliance especially anomalous.[6] Moreover, as the Court acknowledges, the claim rejected in each of those cases was predicated on the media's alleged violation of the plaintiffs' "unorthodox non-Fourth Amendment right to privacy theories," ante, at 616, rather than a claim that the officers violated the Fourth Amendment by allowing the press to observe the execution of the warrant. Moncrief v. Hanton, 10 Media L. Rptr. 1620 (ND Ohio 1984); Higbee v. Times-Advocate, 5 Media L. Rptr. 2372 As for the other case, —cited by the Court, ante, at 616, for the proposition that the officer's conduct was "not unreasonable"—it actually held that the defendants' motion to dismiss should have been denied because the allegations supported the conclusion that the officer committed a trespass when he allowed a third party to enter the plaintiff's property.[7] Since that conclusion was fully consistent with a *624 number of common-law cases holding that similar conduct constituted a trespass,[8] it surely does not provide any support for an officer's assumption that a similar trespass would be lawful. Far better evidence of an officer's reasonable understanding of the relevant law is provided by the testimony of the Sheriff of Montgomery County, the commanding officer of three of the respondents: "`We would never let a civilian into a home. That's just not allowed.' " Brief for Petitioners 41. I The most disturbing aspect of the Court's ruling on the qualified immunity issue is its reliance on a document discussing "ride-alongs" apparently prepared by an employee in the public relations office of the United States Marshals Service. The text of the document, portions of which are set out in an appendix, makes it quite clear that its author was not a lawyer, but rather a person concerned with developing the proper public image of the Service, with a special interest in creating a favorable impression with the Congress. Although the document occupies 14 pages in the joint *625 appendix and suggests handing out free Marshals Service T-shirts and caps to "grease the skids," it contains no discussion of the conditions which must be satisfied before a newsperson may be authorized to enter private property during the execution of a warrant. App. 12. There are guidelines about how officers should act and speak in front of the camera, and the document does indicate that "the camera" should not enter a private home until a "signal" is given. It does not, however, purport to give any guidance to the marshals regarding when such a signal should be given, whether it should ever be given without the consent of the homeowner, or indeed on how to carry out any part of their law enforcement mission. The notion that any member of that well-trained cadre of professionals would rely on such a document for guidance in the performance of dangerous law enforcement assignments is too farfetched to merit serious consideration. * * * The defense of qualified immunity exists to protect reasonable officers from personal liability for official actions later found to be in violation of constitutional rights that were not clearly The conduct in this case, as the Court itself reminds us, contravened the Fourth Amendment's core protection of the home. In shielding this conduct as if it implicated only the unsettled margins of our jurisprudence, the Court today authorizes one free violation of the wellestablished rule it reaffirms. I respectfully dissent. APPENDIX TO OPINION OF STEVENS, J. "MEDIA RIDE-ALONGS "The U. S. Marshals Service, like all federal agencies, ultimately serves the needs and interests of the American public *626 when it accomplishes its designated duties. Keeping the public adequately informed of what the Service does can be viewed as a duty in its own right, and we depend on the news media to accomplish that. "Media `ride-alongs' are one effective method to promote an accurate picture of Deputy Marshals at work. Ride-alongs, as the name implies, are simply opportunities for reporters and camera crews to go along with Deputies on operational missions so they can see, and record, what actually happens. The result is usually a very graphic and dynamic look at the operational activities of the Marshals Service, which is subsequently aired on TV or printed in a newspaper, magazine, or book. "However, successful ride-alongs don't just `happen' in a spontaneous fashion. They require careful planning and attention to detail to ensure that all goes smoothly and that the media receive an accurate picture of how the Marshals Service operates. This booklet describes considerations that are important in nearly every ride-along." App. 4. "Establish Ground Rules "Another good idea—actually, it's an essential one—is to establish ground rules at the start and convey them to the reporter and camera person. Address such things as what can be covered with cameras and when, any privacy restrictions that may be encountered, and interview guidelines. "Emphasize the need for safety considerations and explain any dangers that might be involved. Make the ground rules realistic but balanced—remember, the media will want good action footage, not just a mop-up scene. If the arrest is planned to take place inside a house or building, agree ahead of time on when the camera can enter and who will give the signal." "The very best planning won't result in a good ride-along if the Marshals Service personnel involved do not do their part. It's a case of actions speaking as loudly as words, and both *627 are important in getting the best media exposure possible." "`Waving the Flag' "One action of special consequence is `waving the flag' of the Marshals Service. This is accomplished when Deputies can easily be recognized as USMS Deputies because they are wearing raid jackets, prominently displaying their badges, or exhibiting other easily identifiable marks of the Service. We want the public to know who you are and what kind of job you do. That is one of the goals of the ride-along. So having Deputy Marshals easily identified as such on camera is not just a whim—it's important to the overall success of the ride-along. "Of course, how the Deputies act and what they say is also crucial. During the ride-along virtually any statement made by Deputies just might end up as a quote, attributed to the person who made it. Sometimes that could prove embarrassing. A Deputy must try to visualize what his or her words will look like in a newspaper or sound like on TV. Being pleasant and professional at all times is key, and that includes not being drawn into statements of personal opinion or inappropriate comments. Using common sense is the rule." -10. "You also need to find out when the coverage will air or end up in print. Ask the reporter if he or she can keep you informed on that matter. You might `grease the skids' for this by offering the reporter, camera person, or other media representatives involved a memento of the Marshals Service. Marshals Service caps, mugs, T-shirts, and the like can help establish a rapport with a reporter that can benefit you in the future." "Getting to the Final Product "Naturally, it's important to see the final product of the ridealong when it airs on TV or appears in the newspaper. You * should arrange to videotape any TV news coverage or clip the resulting newspaper stories and send a copy of the videotape or news clipping to the Office of Congressional and Public Affairs."

Justice Ginsburg

majority

Skilling v. United States

2010-06-24

https://www.courtlistener.com/opinion/149286/skilling-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/149286/

In 2001, Enron Corporation, then the seventh highest­ revenue-grossing company in America, crashed into bank­ ruptcy. We consider in this opinion two questions arising from the prosecution of Jeffrey Skilling, a longtime Enron executive, for crimes committed before the corporation’s collapse. First, did pretrial publicity and community prejudice prevent Skilling from obtaining a fair trial? Second, did the jury improperly convict Skilling of con­ spiracy to commit “honest-services” wire fraud, 18 U.S. C. §§371, 1343, 1346? Answering no to both questions, the Fifth Circuit af­ firmed Skilling’s convictions. We conclude, in common with the Court of Appeals, that Skilling’s fair-trial argu­ ment fails; Skilling, we hold, did not establish that a presumption of juror prejudice arose or that actual bias infected the jury that tried him. But we disagree with the Fifth Circuit’s honest-services ruling. In proscribing fraudulent deprivations of “the intangible right of honest services,” §1346, Congress intended at least to reach schemes to defraud involving bribes and kickbacks. Con­ 2 SKILLING v. UNITED STATES Opinion of the Court struing the honest-services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that §1346 covers only bribery and kickback schemes. Because Skilling’s alleged miscon­ duct entailed no bribe or kickback, it does not fall within §1346’s proscription. We therefore affirm in part and vacate in part. I Founded in 1985, Enron Corporation grew from its headquarters in Houston, Texas, into one of the world’s leading energy companies. Skilling launched his career there in 1990 when Kenneth Lay, the company’s founder, hired him to head an Enron subsidiary. Skilling steadily rose through the corporation’s ranks, serving as president and chief operating officer, and then, beginning in Febru­ ary 2001, as chief executive officer. Six months later, on August 14, 2001, Skilling resigned from Enron. Less than four months after Skilling’s departure, Enron spiraled into bankruptcy. The company’s stock, which had traded at $90 per share in August 2000, plummeted to pennies per share in late 2001. Attempting to comprehend what caused the corporation’s collapse, the U. S. Depart­ ment of Justice formed an Enron Task Force, comprising prosecutors and FBI agents from around the Nation. The Government’s investigation uncovered an elaborate con­ spiracy to prop up Enron’s short-run stock prices by over­ stating the company’s financial well-being. In the years following Enron’s bankruptcy, the Government prosecuted dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the corporation’s chain of command: On July 7, 2004, a grand jury indicted Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer. These three defendants, the indictment alleged, “engaged in a wide-ranging scheme to deceive the in­ Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court vesting public, including Enron’s shareholders, . . . about the true performance of Enron’s businesses by: (a) manipulating Enron’s publicly reported financial results; and (b) making public statements and repre­ sentations about Enron’s financial performance and results that were false and misleading.” App. ¶5, p. 277a. Skilling and his co-conspirators, the indictment continued, “enriched themselves as a result of the scheme through salary, bonuses, grants of stock and stock options, other profits, and prestige.” Id., ¶14, at 280a. Count 1 of the indictment charged Skilling with con­ spiracy to commit securities and wire fraud; in particular, it alleged that Skilling had sought to “depriv[e] Enron and its shareholders of the intangible right of [his] honest services.” Id., ¶87, at 318a.1 The indictment further charged Skilling with more than 25 substantive counts of securities fraud, wire fraud, making false representations to Enron’s auditors, and insider trading. In November 2004, Skilling moved to transfer the trial to another venue; he contended that hostility toward him in Houston, coupled with extensive pretrial publicity, had poisoned potential jurors. To support this assertion, Skill­ ing, aided by media experts, submitted hundreds of news reports detailing Enron’s downfall; he also presented affidavits from the experts he engaged portraying commu­ nity attitudes in Houston in comparison to other potential venues. The U. S. District Court for the Southern District of —————— 1 The mail- and wire-fraud statutes criminalize the use of the mails or wires in furtherance of “any scheme or artifice to defraud, or for obtain­ ing money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S. C. §1341 (mail fraud); §1343 (wire fraud). The honest-services statute, §1346, defines “the term ‘scheme or artifice to defraud’ ” in these provisions to include “a scheme or artifice to deprive another of the intangible right of honest services.” 4 SKILLING v. UNITED STATES Opinion of the Court Texas, in accord with rulings in two earlier instituted Enron-related prosecutions,2 denied the venue-transfer motion. Despite “isolated incidents of intemperate com­ mentary,” the court observed, media coverage “ha[d] [mostly] been objective and unemotional,” and the facts of the case were “neither heinous nor sensational.” App. to Brief for United States 10a–11a.3 Moreover, “courts ha[d] commonly” favored “effective voir dire . . . to ferret out any [juror] bias.” Id., at 18a. Pretrial publicity about the case, the court concluded, did not warrant a presumption that Skilling would be unable to obtain a fair trial in Houston. Id., at 22a. In the months leading up to the trial, the District Court solicited from the parties questions the court might use to screen prospective jurors. Unable to agree on a ques- tionnaire’s format and content, Skilling and the Govern­ ment submitted dueling documents. On venire members’ sources of Enron-related news, for example, the Govern­ —————— 2 See United States v. Fastow, 292 F. Supp. 2d 914, 918 (SD Tex. 2003); Order in United States v. Hirko, No. 4:03–cr–00093 (SD Tex., Nov. 24, 2004), Doc. 484, p. 6. These rulings were made by two other judges of the same District. Three judges residing in the area thus independently found that defendants in Enron-related cases could obtain a fair trial in Houston. 3 Painting a different picture of the media coverage surrounding En­ ron’s collapse, JUSTICE SOTOMAYOR’s opinion relies heavily on affidavits of media experts and jury consultants submitted by Skilling in support of his venue-transfer motion. E.g., post, at 2, 3, 4, 5 (opinion concurring in part and dissenting in part) (hereinafter dissent); post, at 5, n. 2, and 23, n. 10; post, at 26, and 35, n. 22. These Skilling-employed experts selected and emphasized negative statements in various news stories. But the District Court Judge did not find the experts’ samples repre­ sentative of the coverage at large; having “[m]eticulous[ly] review[ed] all of the evidence” Skilling presented, the court concluded that “inci­ dents [of news reports using] less-than-objective language” were dwarfed by “the largely fact-based tone of most of the articles.” App. to Brief for United States 7a, 10a, 11a. See also post, at 3 (acknowledging that “many of the stories were straightforward news items”). Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court ment proposed that they tick boxes from a checklist of generic labels such as “[t]elevision,” “[n]ewspaper,” and “[r]adio,” Record 8415; Skilling proposed more probing questions asking venire members to list the specific names of their media sources and to report on “what st[ood] out in [their] mind[s]” of “all the things [they] ha[d] seen, heard or read about Enron,” id., at 8404–8405. The District Court rejected the Government’s sparer inquiries in favor of Skilling’s submission. Skilling’s questions “[we]re more helpful,” the court said, “because [they] [we]re generally . . . open-ended and w[ould] allow the potential jurors to give us more meaningful informa­ tion.” Id., at 9539. The court converted Skilling’s submis­ sion, with slight modifications, into a 77-question, 14-page document that asked prospective jurors about, inter alia, their sources of news and exposure to Enron-related pub­ licity, beliefs concerning Enron and what caused its col­ lapse, opinions regarding the defendants and their possi­ ble guilt or innocence, and relationships to the company and to anyone affected by its demise.4 —————— 4 Questions included the following: “What are your opinions about the compensation that executives of large corporations receive?”; “Have you, any family members, or friends ever worked for or applied for work with,” “done business with,” or “owned stock in Enron Corporation or any Enron subsidiaries and partnership?”; “Do you know anyone . . . who has been negatively affected or hurt in any way by what happened at Enron?”; “Do you have an opinion about the cause of the collapse of Enron? If YES, what is your opinion? On what do you base your opinion?”; “Have you heard or read about any of the Enron cases? If YES, please tell us the name of all sources from which you have heard or read about the Enron cases.”; “Have you read any books or seen any movies about Enron? If YES, please describe.”; “Are you angry about what happened with Enron? If YES, please explain.”; “Do you have an opinion about . . . Jeffrey Skilling . . . [?] If YES, what is your opinion? On what do you base your opinion?”; “Based on anything you have heard, read, or been told[,] do you have any opinion about the guilt or innocence of . . . Jeffrey Skilling[?] If . . . YES . . . , please explain.”; “[W]ould any opinion you may have formed regarding Enron or any of 6 SKILLING v. UNITED STATES Opinion of the Court In November 2005, the District Court mailed the ques­ tionnaire to 400 prospective jurors and received responses from nearly all the addressees. The court granted hard­ ship exemptions to approximately 90 individuals, id., at 11773–11774, and the parties, with the court’s approval, further winnowed the pool by excusing another 119 for cause, hardship, or physical disability, id., at 11891, 13594. The parties agreed to exclude, in particular, “each and every” prospective juror who said that a preexisting opinion about Enron or the defendants would prevent her from impartially considering the evidence at trial. Id., at 13668. On December 28, 2005, three weeks before the date scheduled for the commencement of trial, Causey pleaded guilty. Skilling’s attorneys immediately requested a con­ tinuance, and the District Court agreed to delay the pro­ ceedings until the end of January 2006. Id., at 14277. In the interim, Skilling renewed his change-of-venue motion, arguing that the juror questionnaires revealed pervasive bias and that news accounts of Causey’s guilty plea fur­ ther tainted the jury pool. If Houston remained the trial venue, Skilling urged that “jurors need to be questioned individually by both the Court and counsel” concerning their opinions of Enron and “publicity issues.” Id., at 12074. The District Court again declined to move the trial. Skilling, the court concluded, still had not “establish[ed] that pretrial publicity and/or community prejudice raise[d] a presumption of inherent jury prejudice.” Id., at 14115. The questionnaires and voir dire, the court observed, provided safeguards adequate to ensure an impartial jury. —————— the defendants prevent you from impartially considering the evidence presented during the trial of . . . Jeffrey Skilling[?] If YES or UNSURE . . . , please explain.”; “Is there anything else you feel is important for the court to know about you?” Record 13013–13026. Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court Id., at 14115–14116. Denying Skilling’s request for attorney-led voir dire, the court said that in 17 years on the bench: “I’ve found . . . I get more forthcoming responses from potential jurors than the lawyers on either side. I don’t know whether people are suspicious of lawyers— but I think if I ask a person a question, I will get a candid response much easier than if a lawyer asks the question.” Id., at 11805. But the court promised to give counsel an opportunity to ask follow-up questions, ibid., and it agreed that venire members should be examined individually about pretrial publicity, id., at 11051–11053. The court also allotted the defendants jointly 14 peremptory challenges, 2 more than the standard number prescribed by Federal Rule of Crimi­ nal Procedure 24(b)(2) and (c)(4)(B). Id., at 13673–13675. Voir dire began on January 30, 2006. The District Court first emphasized to the venire the importance of impartial­ ity and explained the presumption of innocence and the Government’s burden of proof. The trial, the court next instructed, was not a forum “to seek vengeance against Enron’s former officers,” or to “provide remedies for” its victims. App. 823a. “The bottom line,” the court stressed, “is that we want . . . jurors who . . . will faithfully, consci­ entiously and impartially serve if selected.” Id., at 823a– 824a. In response to the court’s query whether any pro­ spective juror questioned her ability to adhere to these instructions, two individuals indicated that they could not be fair; they were therefore excused for cause, id., at 816a, 819a–820a. After questioning the venire as a group,5 the District Court brought prospective jurors one by one to the bench —————— 5 Among other questions, the court asked whether sympathy toward the victims of Enron’s collapse or a desire to see justice done would overpower prospective jurors’ impartiality. App. 839a–840a. 8 SKILLING v. UNITED STATES Opinion of the Court for individual examination. Although the questions var­ ied, the process generally tracked the following format: The court asked about exposure to Enron-related news and the content of any stories that stood out in the pro­ spective juror’s mind. Next, the court homed in on ques­ tionnaire answers that raised a red flag signaling possible bias. The court then permitted each side to pose follow-up questions. Finally, after the venire member stepped away, the court entertained and ruled on challenges for cause. In all, the court granted one of the Government’s for- cause challenges and denied four; it granted three of the defendants’ challenges and denied six. The parties agreed to excuse three additional jurors for cause and one for hardship. By the end of the day, the court had qualified 38 pro­ spective jurors, a number sufficient, allowing for peremp­ tory challenges, to empanel 12 jurors and 4 alternates.6 Before the jury was sworn in, Skilling objected to the seating of six jurors. He did not contend that they were in fact biased; instead, he urged that he would have used —————— 6 Selection procedures of similar style and duration took place in three Enron-related criminal cases earlier prosecuted in Houston— United States v. Arthur Andersen LLP, No. 4:02–cr–00121–1 (SD Tex.) (charges against Enron’s outside accountants); United States v. Bayly, No. 4:03–cr–00363 (SD Tex.) (charges against Merrill Lynch and Enron executives for alleged sham sales of Nigerian barges); United States v. Hirko, No. 4:03–cr–00093 (SD Tex.) (fraud and insider-trading charges against five Enron Broadband Services executives). See Brief for United States 9 (In all three cases, the District Court “distributed a jury questionnaire to a pool of several hundred potential jurors; dis­ missed individuals whose responses to the questionnaire demonstrated bias or other disqualifying characteristics; and, after further question­ ing by the court and counsel, selected a jury from the remaining venire in one day.”); Government’s Memorandum of Law in Response to Defendants’ Joint Motion to Transfer Venue in United States v. Skilling et al., No. 4:04–cr–00025 (SD Tex., Dec. 3, 2004), Record, Doc. 231, pp. 21–28 (describing in depth the jury-selection process in the Arthur Andersen and Bayly trials). Cite as: 561 U. S. ____ (2010) 9 Opinion of the Court peremptories to exclude them had he not exhausted his supply by striking several venire members after the court refused to excuse them for cause. Supp. App. 3sa–4sa (Sealed).7 The court overruled this objection. After the jurors took their oath, the District Court told them they could not discuss the case with anyone or follow media accounts of the proceedings. “[E]ach of you,” the court explained, “needs to be absolutely sure that your decisions concerning the facts will be based only on the evidence that you hear and read in this courtroom.” App. 1026a. Following a 4-month trial and nearly five days of delib­ eration, the jury found Skilling guilty of 19 counts, includ­ ing the honest-services-fraud conspiracy charge, and not guilty of 9 insider-trading counts. The District Court sentenced Skilling to 292 months’ imprisonment, 3 years’ supervised release, and $45 million in restitution. On appeal, Skilling raised a host of challenges to his convictions, including the fair-trial and honest-services arguments he presses here. Regarding the former, the Fifth Circuit initially determined that the volume and negative tone of media coverage generated by Enron’s collapse created a presumption of juror prejudice. 554 F.3d 529, 559 (2009).8 The court also noted potential —————— 7 Skilling had requested an additional peremptory strike each time the District Court rejected a for-cause objection. The court, which had already granted two extra peremptories, see supra, at 7, denied each request. 8 The Fifth Circuit described the media coverage as follows: “Local newspapers ran many personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron. . . . Even the [Houston] Chronicle’s sports page wrote of Skilling’s guilt as a foregone conclusion. Similarly, the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’ These are but a few examples of the Chronicle’s coverage.” 554 F.3d, at 559 (footnote omitted). 10 SKILLING v. UNITED STATES Opinion of the Court prejudice stemming from Causey’s guilty plea and from the large number of victims in Houston—from the “[t]housands of Enron employees . . . [who] lost their jobs, and . . . saw their 401(k) accounts wiped out,” to Housto­ nians who suffered spillover economic effects. Id., at 559– 560. The Court of Appeals stated, however, that “the pre­ sumption [of prejudice] is rebuttable,” and it therefore examined the voir dire to determine whether “the District Court empanelled an impartial jury.” Id., at 561 (internal quotation marks, italics, and some capitalization omitted). The voir dire was, in the Fifth Circuit’s view, “proper and thorough.” Id., at 562. Moreover, the court noted, Skill- ing had challenged only one seated juror—Juror 11—for cause. Although Juror 11 made some troubling comments about corporate greed, the District Court “observed [his] demeanor, listened to his answers, and believed he would make the government prove its case.” Id., at 564. In sum, the Fifth Circuit found that the Government had overcome the presumption of prejudice and that Skilling had not “show[n] that any juror who actually sat was prejudiced against him.” Ibid. The Court of Appeals also rejected Skilling’s claim that his conduct did not indicate any conspiracy to commit honest-services fraud. “[T]he jury was entitled to convict Skilling,” the court stated, “on these elements”: “(1) a material breach of a fiduciary duty . . . (2) that results in a detriment to the employer,” including one occasioned by an employee’s decision to “withhold material information, i.e., information that he had reason to believe would lead a reasonable employer to change its conduct.” Id., at 547. The Fifth Circuit did not address Skilling’s argument that the honest-services statute, if not interpreted to exclude his actions, should be invalidated as unconstitutionally vague. Brief of Defendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21. Cite as: 561 U. S. ____ (2010) 11 Opinion of the Court Arguing that the Fifth Circuit erred in its consideration of these claims, Skilling sought relief from this Court. We granted certiorari, 558 U. S. ___ (2009), and now affirm in part, vacate in part, and remand for further proceedings.9 We consider first Skilling’s allegation of juror prejudice, and next, his honest-services argument. II Pointing to “the community passion aroused by Enron’s collapse and the vitriolic media treatment” aimed at him, Skilling argues that his trial “never should have proceeded in Houston.” Brief for Petitioner 20. And even if it had been possible to select impartial jurors in Houston, “[t]he truncated voir dire . . . did almost nothing to weed out prejudices,” he contends, so “[f]ar from rebutting the pre­ sumption of prejudice, the record below affirmatively confirmed it.” Id., at 21. Skilling’s fair-trial claim thus raises two distinct questions. First, did the District Court err by failing to move the trial to a different venue based on a presumption of prejudice? Second, did actual preju­ dice contaminate Skilling’s jury?10 A 1 The Sixth Amendment secures to criminal defendants —————— 9 We also granted certiorari and heard arguments this Term in two other cases raising questions concerning the honest-services statute’s scope. See Black v. United States, No. 08–876; Weyhrauch v. United States, No. 08–1196. Today we vacate and remand those decisions in light of this opinion. Black, post, p. ___; Weyhrauch, post, p. ___. 10 Assuming, as the Fifth Circuit found, that a presumption of preju­ dice arose in Houston, the question presented in Skilling’s petition for certiorari casts his actual-prejudice argument as an inquiry into when, if ever, that presumption may be rebutted. See Pet. for Cert. i. Al­ though we find a presumption of prejudice unwarranted in this case, we consider the actual-prejudice issue to be fairly subsumed within the question we agreed to decide. See this Court’s Rule 14.1(a). 12 SKILLING v. UNITED STATES Opinion of the Court the right to trial by an impartial jury. By constitutional design, that trial occurs “in the State where the . . . Crimes . . . have been committed.” Art. III, §2, cl. 3. See also Amdt. 6 (right to trial by “jury of the State and dis­ trict wherein the crime shall have been committed”). The Constitution’s place-of-trial prescriptions, however, do not impede transfer of the proceeding to a different district at the defendant’s request if extraordinary local prejudice will prevent a fair trial—a “basic requirement of due process,” In re Murchison, 349 U.S. 133, 136 (1955).11 2 “The theory of our [trial] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influ­ —————— 11 Venue transfer in federal court is governed by Federal Rule of Criminal Procedure 21, which instructs that a “court must transfer the proceeding . . . to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” As the language of the Rule suggests, district-court calls on the necessity of transfer are granted a healthy measure of appellate-court respect. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245 (1964). Federal courts have invoked the Rule to move certain highly charged cases, for example, the prosecution arising from the bombing of the Alfred P. Murrah Federal Office Building in Oklahoma City. See United States v. McVeigh, 918 F. Supp. 1467, 1474 (WD Okla. 1996). They have also exercised discretion to deny venue-transfer requests in cases involving substantial pretrial publicity and community impact, for example, the prosecutions resulting from the 1993 World Trade Center bombing, see United States v. Salameh, No. S5 93 Cr. 0180 (KTD) (SDNY, Sept. 15, 1993); United States v. Yousef, No. S12 93 Cr. 180 (KTD) (SDNY, July 18, 1997), aff’d 327 F.3d 56, 155 (CA2 2003), and the prosecution of John Walker Lindh, referred to in the press as the American Taliban, see United States v. Lindh, 212 F. Supp. 2d 541, 549–551 (ED Va. 2002). Skilling does not argue, distinct from his due process challenge, that the District Court abused its discretion under Rule 21 by declining to move his trial. We there­ fore review the District Court’s venue-transfer decision only for compli­ ance with the Constitution. Cite as: 561 U. S. ____ (2010) 13 Opinion of the Court ence, whether of private talk or public print.” Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 462 (1907) (opinion for the Court by Holmes, J.). When does the publicity attending conduct charged as criminal dim prospects that the trier can judge a case, as due proc­ ess requires, impartially, unswayed by outside influence? Because most cases of consequence garner at least some pretrial publicity, courts have considered this question in diverse settings. We begin our discussion by addressing the presumption of prejudice from which the Fifth Cir­ cuit’s analysis in Skilling’s case proceeded. The founda­ tion precedent is Rideau v. Louisiana, 373 U.S. 723 (1963). Wilbert Rideau robbed a bank in a small Louisiana town, kidnaped three bank employees, and killed one of them. Police interrogated Rideau in jail without counsel present and obtained his confession. Without informing Rideau, no less seeking his consent, the police filmed the interrogation. On three separate occasions shortly before the trial, a local television station broadcast the film to audiences ranging from 24,000 to 53,000 individuals. Rideau moved for a change of venue, arguing that he could not receive a fair trial in the parish where the crime oc­ curred, which had a population of approximately 150,000 people. The trial court denied the motion, and a jury eventually convicted Rideau. The Supreme Court of Lou­ isiana upheld the conviction. We reversed. “What the people [in the community] saw on their television sets,” we observed, “was Rideau, in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder.” Id., at 725. “[T]o the tens of thousands of people who saw and heard it,” we explained, the interrogation “in a very real sense was Rideau’s trial—at which he pleaded guilty.” Id., at 726. We therefore “d[id] not hesitate to hold, without pausing to examine a particularized tran­ 14 SKILLING v. UNITED STATES Opinion of the Court script of the voir dire,” that “[t]he kangaroo court proceed­ ings” trailing the televised confession violated due process. Id., at 726–727. We followed Rideau’s lead in two later cases in which media coverage manifestly tainted a criminal prosecution. In Estes v. Texas, 381 U.S. 532, 538 (1965), extensive publicity before trial swelled into excessive exposure during preliminary court proceedings as reporters and television crews overran the courtroom and “bombard[ed] . . . the community with the sights and sounds of” the pretrial hearing. The media’s overzealous reporting ef­ forts, we observed, “led to considerable disruption” and denied the “judicial serenity and calm to which [Billie Sol Estes] was entitled.” Id., at 536. Similarly, in Sheppard v. Maxwell, 384 U.S. 333 (1966), news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeoning his pregnant wife to death. “[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom,” thrusting jurors “into the role of celebrities.” Id., at 353, 355. Pretrial media coverage, which we char­ acterized as “months [of] virulent publicity about Sheppard and the murder,” did not alone deny due proc­ ess, we noted. Id., at 354. But Sheppard’s case involved more than heated reporting pretrial: We upset the murder conviction because a “carnival atmosphere” pervaded the trial, id., at 358. In each of these cases, we overturned a “conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage”; our decisions, however, “cannot be made to stand for the proposition that juror exposure to . . . news accounts of the crime . . . alone presumptively deprives the defendant of due process.” Murphy v. Flor ida, 421 U.S. 794, 798–799 (1975).12 See also, e.g., Patton —————— 12 Murphy involved the robbery prosecution of the notorious Jack Cite as: 561 U. S. ____ (2010) 15 Opinion of the Court v. Yount, 467 U.S. 1025 (1984).13 Prominence does not necessarily produce prejudice, and juror impartiality, we have reiterated, does not require ignorance. Irvin v. Dowd, 366 U.S. 717, 722 (1961) (Jurors are not required to be “totally ignorant of the facts and issues involved”; “scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”); Reynolds v. United States, 98 U.S. 145, 155–156 (1879) (“[E]very case of public interest is almost, as a matter of necessity, brought to the attention of all the intelligent people in the vicinity, and scarcely any one can be found among those best fitted for jurors who has not read or heard of it, and who has not some —————— Murphy, a convicted murderer who helped mastermind the 1964 heist of the Star of India sapphire from New York’s American Museum of Natural History. Pointing to “extensive press coverage” about him, Murphy moved to transfer venue. 421 U.S., at 796. The trial court denied the motion and a jury convicted Murphy. We affirmed. Mur­ phy’s trial, we explained, was markedly different from the proceedings at issue in Rideau v. Louisiana, 373 U.S. 723 (1963), Estes v. Texas, 381 U.S. 532 (1965), and Sheppard v. Maxwell, 384 U.S. 333 (1966), which “entirely lack[ed] . . . the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.” 421 U.S., at 799. Voir dire revealed no great hostility toward Murphy; “[s]ome of the jurors had a vague recollection of the robbery with which [he] was charged and each had some knowledge of [his] past crimes, but none betrayed any belief in the relevance of [his] past to the present case.” Id., at 800 (footnote omitted). 13 In Yount, the media reported on Jon Yount’s confession to a brutal murder and his prior conviction for the crime, which had been reversed due to a violation of Miranda v. Arizona, 384 U.S. 436 (1966). During voir dire, 77% of prospective jurors acknowledged they would carry an opinion into the jury box, and 8 of the 14 seated jurors and alternates admitted they had formed an opinion as to Yount’s guilt. 467 U.S., at 1029–1030. Nevertheless, we rejected Yount’s presumption-of­ prejudice claim. The adverse publicity and community outrage, we noted, were at their height prior to Yount’s first trial, four years before the second prosecution; time had helped “sooth[e] and eras[e]” commu­ nity prejudice, id., at 1034. 16 SKILLING v. UNITED STATES Opinion of the Court impression or some opinion in respect to its merits.”). A presumption of prejudice, our decisions indicate, attends only the extreme case. 3 Relying on Rideau, Estes, and Sheppard, Skilling as­ serts that we need not pause to examine the screening questionnaires or the voir dire before declaring his jury’s verdict void. We are not persuaded. Important differ­ ences separate Skilling’s prosecution from those in which we have presumed juror prejudice.14 First, we have emphasized in prior decisions the size and characteristics of the community in which the crime occurred. In Rideau, for example, we noted that the mur­ der was committed in a parish of only 150,000 residents. Houston, in contrast, is the fourth most populous city in the Nation: At the time of Skilling’s trial, more than 4.5 million individuals eligible for jury duty resided in the Houston area. App. 627a. Given this large, diverse pool of potential jurors, the suggestion that 12 impartial indi­ viduals could not be empaneled is hard to sustain. See Mu’Min v. Virginia, 500 U.S. 415, 429 (1991) (potential for prejudice mitigated by the size of the “metropolitan Washington [D. C.] statistical area, which has a popula­ tion of over 3 million, and in which, unfortunately, hun­ dreds of murders are committed each year”); Gentile v. State Bar of Nev., 501 U.S. 1030, 1044 (1991) (plurality opinion) (reduced likelihood of prejudice where venire was drawn from a pool of over 600,000 individuals).15 —————— 14 Skilling’s reliance on Estes and Sheppard is particularly misplaced; those cases involved media interference with courtroom proceedings during trial. See supra, at 14. Skilling does not assert that news coverage reached and influenced his jury after it was empaneled. 15 According to a survey commissioned by Skilling in conjunction with his first motion for a venue change, only 12.3% of Houstonians named him when asked to list Enron executives they believed guilty of crimes. Cite as: 561 U. S. ____ (2010) 17 Opinion of the Court Second, although news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight. Rideau’s dramatically staged admission of guilt, for in­ stance, was likely imprinted indelibly in the mind of any­ one who watched it. Cf. Parker v. Randolph, 442 U.S. 62, 72 (1979) (plurality opinion) (“[T]he defendant’s own con­ fession [is] probably the most probative and damaging evidence that can be admitted against him.” (internal quotation marks omitted)). Pretrial publicity about Skill­ ing was less memorable and prejudicial. No evidence of the smoking-gun variety invited prejudgment of his culpa­ bility. See United States v. Chagra, 669 F.2d 241, 251– 252, n. 11 (CA5 1982) (“A jury may have difficulty in disbelieving or forgetting a defendant’s opinion of his own guilt but have no difficulty in rejecting the opinions of others because they may not be well-founded.”). Third, unlike cases in which trial swiftly followed a widely reported crime, e.g., Rideau, 373 U.S., at 724, over four years elapsed between Enron’s bankruptcy and Skill­ ing’s trial. Although reporters covered Enron-related news throughout this period, the decibel level of media attention diminished somewhat in the years following Enron’s collapse. See App. 700a; id., at 785a; Yount, 467 U.S., at 1032, 1034. Finally, and of prime significance, Skilling’s jury acquit­ ted him of nine insider-trading counts. Similarly, earlier instituted Enron-related prosecutions yielded no over­ —————— App. 375a–376a. In response to the follow-up question “[w]hat words come to mind when you hear the name Jeff Skilling?”, two-thirds of respondents failed to say a single negative word, id., at 376a: 43% either had never heard of Skilling or stated that nothing came to mind when they heard his name, and another 23% knew Skilling’s name was associated with Enron but reported no opinion about him, Record 3210– 3211; see App. 417a–492a. 18 SKILLING v. UNITED STATES Opinion of the Court whelming victory for the Government.16 In Rideau, Estes, and Sheppard, in marked contrast, the jury’s verdict did not undermine in any way the supposition of juror bias. It would be odd for an appellate court to presume prejudice in a case in which jurors’ actions run counter to that pre­ sumption. See, e.g., United States v. Arzola-Amaya, 867 F.2d 1504, 1514 (CA5 1989) (“The jury’s ability to discern a failure of proof of guilt of some of the alleged crimes indicates a fair minded consideration of the issues and reinforces our belief and conclusion that the media cover­ age did not lead to the deprivation of [the] right to an impartial trial.”). 4 Skilling’s trial, in short, shares little in common with those in which we approved a presumption of juror preju­ dice. The Fifth Circuit reached the opposite conclusion based primarily on the magnitude and negative tone of media attention directed at Enron. But “pretrial public­ ity—even pervasive, adverse publicity—does not inevita­ bly lead to an unfair trial.” Nebraska Press Assn. v. Stu art, 427 U.S. 539, 554 (1976). In this case, as just noted, news stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particu­ larly likely to produce prejudice, and Houston’s size and diversity diluted the media’s impact.17 —————— 16 As the United States summarizes, “[i]n Hirko, the jury deliberated for several days and did not convict any Enron defendant; in Bayly, which was routinely described as ‘the first Enron criminal trial,’ the jury convicted five defendants, . . . but acquitted a former Enron execu­ tive. At the sentencing phase of Bayly, the jury found a loss amount of slightly over $13 million, even though the government had argued that the true loss . . . was $40 million.” Brief for United States 9–10 (cita­ tion omitted). 17 The Fifth Circuit, moreover, did not separate media attention aimed at Skilling from that devoted to Enron’s downfall more generally. Data submitted by Skilling in support of his first motion for a venue Cite as: 561 U. S. ____ (2010) 19 Opinion of the Court Nor did Enron’s “sheer number of victims,” 554 F.3d, at 560, trigger a presumption of prejudice. Although the widespread community impact necessitated careful identi­ fication and inspection of prospective jurors’ connections to Enron, the extensive screening questionnaire and follow­ up voir dire were well suited to that task. And hindsight shows the efficacy of these devices; as we discuss infra, at 24, jurors’ links to Enron were either nonexistent or attenuated. Finally, although Causey’s “well-publicized decision to plead guilty” shortly before trial created a danger of juror prejudice, 554 F.3d, at 559, the District Court took appro­ priate steps to reduce that risk. The court delayed the proceedings by two weeks, lessening the immediacy of that development. And during voir dire, the court asked about prospective jurors’ exposure to recent publicity, including news regarding Causey. Only two venire members re­ called the plea; neither mentioned Causey by name, and neither ultimately served on Skilling’s jury. App. 888a, 993a. Although publicity about a codefendant’s guilty plea calls for inquiry to guard against actual prejudice, it does not ordinarily—and, we are satisfied, it did not here— warrant an automatic presumption of prejudice. Persuaded that no presumption arose,18 we conclude that the District Court, in declining to order a venue change, did not exceed constitutional limitations.19 —————— transfer suggested that a slim percentage of Enron-related stories specifically named him. App. 572a. “[W]hen publicity is about the event, rather than directed at individual defendants, this may lessen any prejudicial impact.” United States v. Hueftle, 687 F.2d 1305, 1310 (CA10 1982). 18 The parties disagree about whether a presumption of prejudice can be rebutted, and, if it can, what standard of proof governs that issue. Compare Brief for Petitioner 25–35 with Brief for United States 24–32, 35–36. Because we hold that no presumption arose, we need not, and do not, reach these questions. 19 The dissent acknowledges that “the prospect of seating an unbiased 20 SKILLING v. UNITED STATES Opinion of the Court B We next consider whether actual prejudice infected Skilling’s jury. Voir dire, Skilling asserts, did not ade­ quately detect and defuse juror bias. “[T]he record . . . affirmatively confirm[s]” prejudice, he maintains, because several seated jurors “prejudged his guilt.” Brief for Peti­ tioner 21. We disagree with Skilling’s characterization of the voir dire and the jurors selected through it. 1 No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146 (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Con­ stitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594–595 (1976) (internal quotation marks omitted); see, e.g., Mu’Min, 500 U.S., at 424; Yount, 467 U.S., at 1038; Rosales-Lopez v. United States, 451 U.S. 182, 188–189 (1981) (plurality opinion); Connors v. United States, 158 U.S. 408–413 (1895). When pretrial publicity is at issue, “primary reliance on the judgment of the trial court makes [especially] good sense” because the judge “sits in the locale where the publicity is said to have had its effect” and may base her evaluation on her “own perception of the depth and extent of news stories that might influence a juror.” Mu’Min, 500 U.S., at 427. Appellate courts making after-the-fact —————— jury in Houston was not so remote as to compel the conclusion that the District Court acted unconstitutionally in denying Skilling’s motion to change venue.” Post, at 20. The dissent’s conclusion that Skilling did not receive a fair trial accordingly turns on its perception of the ade­ quacy of the jury-selection process. Cite as: 561 U. S. ____ (2010) 21 Opinion of the Court assessments of the media’s impact on jurors should be mindful that their judgments lack the on-the-spot com­ prehension of the situation possessed by trial judges. Reviewing courts are properly resistant to second­ guessing the trial judge’s estimation of a juror’s impartial­ ity, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record— among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty. See Reynolds, 98 U.S., at 156–157. In contrast to the cold transcript received by the appellate court, the in­ the-moment voir dire affords the trial court a more inti­ mate and immediate basis for assessing a venire member’s fitness for jury service. We consider the adequacy of jury selection in Skilling’s case, therefore, attentive to the respect due to district-court determinations of juror im­ partiality and of the measures necessary to ensure that impartiality.20 —————— 20 The dissent recognizes “the ‘wide discretion’ owed to trial courts when it comes to jury-related issues,” post, at 22 (quoting Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)), but its analysis of the District Court’s voir dire sometimes fails to demonstrate that awareness. For example, the dissent faults the District Court for not questioning prospective jurors regarding their “knowledge of or feelings about” Causey’s guilty plea. Post, at 28. But the court could reasonably decline to ask direct questions involving Causey’s plea to avoid tipping off until-that-moment uninformed venire members that the plea had occurred. Cf. App. 822a (counsel for Skilling urged District Court to find a way to question venire members about Causey “without mention­ ing anything”). Nothing inhibited defense counsel from inquiring about venire members’ knowledge of the plea; indeed, counsel posed such a question, id., at 993a; cf. post, at 28, n. 14 (acknowledging that counsel “squeeze[d] in” an inquiry whether a venire member had “read about any guilty pleas in this case over the last month or two” (internal quotation marks omitted)). From this Court’s lofty and “panoramic” vantage point, post, at 22, lines of voir dire inquiry that “might be helpful in assessing whether a juror is impartial” are not hard to conceive. Mu’Min, 500 U.S., at 425. “To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, 22 SKILLING v. UNITED STATES Opinion of the Court 2 Skilling deems the voir dire insufficient because, he argues, jury selection lasted “just five hours,” “[m]ost of the court’s questions were conclusory[,] high-level, and failed adequately to probe jurors’ true feelings,” and the court “consistently took prospective jurors at their word once they claimed they could be fair, no matter what other indications of bias were present.” Brief for Petitioner 10– 11 (emphasis deleted). Our review of the record, however, yields a different appraisal.21 As noted, supra, at 4–6, and n. 4, the District Court initially screened venire members by eliciting their re­ sponses to a comprehensive questionnaire drafted in large part by Skilling. That survey helped to identify prospec­ tive jurors excusable for cause and served as a spring­ board for further questions put to remaining members of the array. Voir dire thus was, in the court’s words, the “culmination of a lengthy process.” App. 841a; see 554 F.3d, at 562, n. 51 (“We consider the . . . questionnaire in —————— the trial court’s failure to ask these questions must render the defen­ dant’s trial fundamentally unfair.” Id., at 425–426. According appro­ priate deference to the District Court, we cannot characterize jury­ selection in this case as fundamentally unfair. Cf. supra, at 8, n. 6 (same selection process was used in other Enron-related prosecutions). 21 In addition to focusing on the adequacy of voir dire, our decisions have also “take[n] into account . . . other measures [that] were used to mitigate the adverse effects of publicity.” Nebraska Press Assn. v. Stuart, 427 U.S. 539, 565 (1976). We have noted, for example, the prophylactic effect of “emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court.” Id., at 564. Here, the District Court’s instructions were unequivocal; the jurors, the court emphasized, were duty bound “to reach a fair and impartial verdict in this case based solely on the evidence [they] hear[d] and read in th[e] courtroom.” App. 1026a. Peremptory challenges, too, “provid[e] protection against [prejudice],” United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956); the District Court, as earlier noted, exercised its discretion to grant the defendants two extra peremptories, App. 1020a; see supra, at 7. Cite as: 561 U. S. ____ (2010) 23 Opinion of the Court assessing the quality of voir dire as a whole.”).22 In other Enron-related prosecutions, we note, District Courts, after inspecting venire members’ responses to questionnaires, completed the jury-selection process within one day. See supra, at 8, n. 6.23 The District Court conducted voir dire, moreover, aware of the greater-than-normal need, due to pretrial publicity, to ensure against jury bias. At Skilling’s urging, the court examined each prospective juror individually, thus pre­ venting the spread of any prejudicial information to other venire members. See Mu’Min, 500 U.S., at 425. To en­ courage candor, the court repeatedly admonished that there were “no right and wrong answers to th[e] ques­ tions.” E.g., App. 843a. The court denied Skilling’s re­ quest for attorney-led voir dire because, in its experience, potential jurors were “more forthcoming” when the court, rather than counsel, asked the question. Record 11805. The parties, however, were accorded an opportunity to ask follow-up questions of every prospective juror brought to —————— 22 The dissent’s analysis undervalues the 77-item questionnaire, a part of the selection process difficult to portray as “cursory,” post, at 30, or “anemic,” post, at 35. Notably, the “open-ended questions about [prospective jurors’] impressions of Enron or Skilling” that the dissent contends should have been asked, post, at 30, were asked—on the questionnaire, see supra, at 5–6, n. 4. Moreover, the District Court gave Skilling’s counsel relatively free rein to ask venire members about their responses on the questionnaire. See, e.g., App. 869a–870a; id., at 878a, 911a, 953a. The questionnaire plus follow-up opportunity to interrogate potential jurors surely gave Skilling’s counsel “clear ave­ nue[s] for . . . permissible inquiry.” But see post, at 31, n. 17. See also App. 967a (counsel for Skilling) (“Judge, for the record, if I don’t ask any questions, it’s because the Court and other counsel have covered it.”). 23 One of the earlier prosecutions targeted the “Big Five” public ac­ counting firm Arthur Andersen. See supra, at 8, n. 6. Among media readers and auditors, the name and reputation of Arthur Andersen likely sparked no less attention than the name and reputation of Jeffrey Skilling. Cf. supra, at 16–17, n. 15. 24 SKILLING v. UNITED STATES Opinion of the Court the bench for colloquy. Skilling’s counsel declined to ask anything of more than half of the venire members ques­ tioned individually, including eight eventually selected for the jury, because, he explained, “the Court and other counsel have covered” everything he wanted to know. App. 967a. Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skilling lists, the selection process successfully secured jurors who were largely un­ touched by Enron’s collapse.24 Eleven of the seated jurors and alternates reported no connection at all to Enron, while all other jurors reported at most an insubstantial link. See, e.g., Supp. App. 101sa (Juror 63) (“I once met a guy who worked for Enron. I cannot remember his name.”).25 As for pretrial publicity, 14 jurors and alter­ nates specifically stated that they had paid scant attention to Enron-related news. See, e.g., App. 859a–860a (Juror —————— 24 In considering whether Skilling was tried before an impartial jury, the dissent relies extensively on venire members not selected for that jury. See, e.g., post, at 6, n. 4 (quoting the questionnaires of ten venire members; all were excused for cause before voir dire commenced, see Record 11891); post, at 7, n. 6 (quoting the questionnaires of 15 venire members; none sat on Skilling’s jury); post, at 10–11, n. 7 (quoting voir dire testimony of six venire members; none sat on Skilling’s jury); post, at 28–34 (reporting at length voir dire testimony of Venire Members 17, 29, 61, 74, 75, and 101; none sat on Skilling’s jury). Statements by nonjurors do not themselves call into question the adequacy of the jury­ selection process; elimination of these venire members is indeed one indicator that the process fulfilled its function. Critically, as discussed infra, at 24–26, the seated jurors showed little knowledge of or interest in, and were personally unaffected by, Enron’s downfall. 25 See also Supp. App. 11sa (Juror 10) (“knew some casual co-workers that owned Enron stock”); id., at 26sa (Juror 11) (“work[s] with some­ one who worked at Enron”); id., at 117sa; App. 940a (Juror 64) (two acquaintances lost money due to Enron’s collapse); Supp. App. 236sa (Juror 116) (work colleague lost money as a result of Enron’s bankruptcy). Cite as: 561 U. S. ____ (2010) 25 Opinion of the Court 13) (would “[b]asically” start out knowing nothing about the case because “I just . . . didn’t follow [it] a whole lot”); id., at 969a (Juror 78) (“[Enron] wasn’t anything that I was interested in reading [about] in detail. . . . I don’t really know much about it.”).26 The remaining two jurors indicated that nothing in the news influenced their opin­ ions about Skilling.27 The questionnaires confirmed that, whatever commu­ nity prejudice existed in Houston generally, Skilling’s jurors were not under its sway.28 Although many ex­ —————— 26 See also App. 850a (Juror 10) (“I haven’t followed [Enron-related news] in detail or to any extreme at all.”); id., at 856a (Juror 11) (did not “get into the details of [the Enron case]” and “just kind of tune[d] [it] out”); id., at 873a (Juror 20) (“I was out of [the] state when [Enron collapsed], and then personal circumstances kept me from paying much attention.”); id., at 892a (Juror 38) (recalled “nothing in particular” about media coverage); id., at 913a (Juror 50) (“I would hear it on the news and just let it filter in and out.”); id., at 935a (Juror 63) (“I don’t really pay attention.”); id., at 940a–941a (Juror 64) (had “[n]ot really” been keeping up with and did not recall any news about Enron); id., at 971a (Juror 84) (had not read “anything at all about Enron” because he did not “want to read that stuff” (internal quotation marks omitted)); id., at 983a (Juror 90) (“seldom” read the Houston Chronicle and did not watch news programs); id., at 995a–996a (Juror 99) (did not read newspapers or watch the news; “I don’t know the details on what [this case] is or what made it what it is”); id., at 1010a (Juror 113) (“never really paid that much attention [to] it”); id., at 1013a (Juror 116) (had “rea[d] a number of different articles,” but “since it hasn’t affected me personally,” could not “specifically recall” any of them). 27 Id., at 944a (Juror 67) (had not read the Houston Chronicle in the three months preceding the trial and volunteered: “I don’t form an opinion based on what . . . I hear on the news”); id., at 974a–975a (Juror 87) (had not “formed any opinions” about Skilling’s guilt from news stories). 28 As the D. C. Circuit observed, reviewing the impact on jurors of media coverage of the Watergate scandal, “[t]his may come as a sur­ prise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.” United States v. Haldeman, 559 F.2d 31, 62–63, n. 37 (1976). See also In re Charlotte Observer, 882 F.2d 850, 855–856 (CA4 1989) 26 SKILLING v. UNITED STATES Opinion of the Court pressed sympathy for victims of Enron’s bankruptcy and speculated that greed contributed to the corporation’s collapse, these sentiments did not translate into animus toward Skilling. When asked whether they “ha[d] an opinion about . . . Jeffrey Skilling,” none of the seated jurors and alternates checked the “yes” box.29 And in response to the question whether “any opinion [they] may have formed regarding Enron or [Skilling] [would] pre­ vent” their impartial consideration of the evidence at trial, every juror—despite options to mark “yes” or “unsure”— instead checked “no.” The District Court, Skilling asserts, should not have “accept[ed] at face value jurors’ promises of fairness.” Brief for Petitioner 37. In Irvin v. Dowd, 366 U.S., at 727–728, Skilling points out, we found actual prejudice despite jurors’ assurances that they could be impartial. Brief for Petitioner 26. JUSTICE SOTOMAYOR, in turn, repeatedly relies on Irvin, which she regards as closely analogous to this case. See post, at 23 (opinion concurring in part and dissenting in part) (hereinafter dissent). See also, e.g., post, at 15–16, 33, 35, 39–40. We disagree with that characterization of Irvin. The facts of Irvin are worlds apart from those presented —————— (“[R]emarkably in the eyes of many,” “[c]ases such as those involving the Watergate defendants, the Abscam defendants, and . . . John DeLorean, all characterized by massive pretrial media reportage and commentary, nevertheless proceeded to trial with juries which . . . were satisfactorily disclosed to have been unaffected (indeed, in some in­ stances blissfully unaware of or untouched) by that publicity.”); Brief for ABC, Inc., et al. as Amici Curiae 25–31 (describing other examples). 29 One juror did not check any box, explaining that she lived in an­ other State when Enron went bankrupt and therefore “was not fully aware of all the facts regarding Enron’s fall [and] the media coverage.” Supp. App. 62sa (Juror 20). Two other jurors, Juror 10 and Juror 63, indicated in answer to a different question that they had an opinion about Skilling’s guilt, but voir dire established they could be impartial. See infra, at 32–34, and n. 34. Cite as: 561 U. S. ____ (2010) 27 Opinion of the Court here. Leslie Irvin stood accused of a brutal murder and robbery spree in a small rural community. 366 U.S., at 719. In the months before Irvin’s trial, “a barrage” of publicity was “unleashed against him,” including reports of his confessions to the slayings and robberies. Id., at 725–726. This Court’s description of the media coverage in Irvin reveals why the dissent’s “best case” is not an apt comparison: “[S]tories revealed the details of [Irvin’s] background, including a reference to crimes committed when a ju­ venile, his convictions for arson almost 20 years pre­ viously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but [he] refused to confess. Finally, they announced [Irvin’s] confession to the six murders and the fact of his indictment for four of them in Indiana. They reported [Irvin’s] offer to plead guilty if promised a 99-year sentence, but also the de­ termination, on the other hand, of the prosecutor to secure the death penalty, and that [Irvin] had con­ fessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing [Irvin’s] execution . . . . Another characterized [Irvin] as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories [Irvin] was described as the ‘confessed slayer of six,’ a parole violator and fraudulent-check artist. [Irvin’s] court-appointed counsel was quoted as having received ‘much criticism over being Irvin’s counsel’ and it was pointed out, by 28 SKILLING v. UNITED STATES Opinion of the Court way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted [to] the murder of [one victim] as well as ‘the robbery-murder of [a sec­ ond individual]; the murder of [a third individual], and the slaughter of three members of [a different family].’ ” Id., at 725–726. “[N]ewspapers in which the[se] stories appeared were delivered regularly to 95% of the dwellings in” the county where the trial occurred, which had a population of only 30,000; “radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents.” Id., at 725. Reviewing Irvin’s fair-trial claim, this Court noted that “the pattern of deep and bitter prejudice” in the commu­ nity “was clearly reflected in the sum total of the voir dire”: “370 prospective jurors or almost 90% of those exam­ ined on the point . . . entertained some opinion as to guilt,” and “[8] out of the 12 [jurors] thought [Irvin] was guilty.” Id., at 727 (internal quotation marks omitted). Although these jurors declared they could be impartial, we held that, “[w]ith his life at stake, it is not requiring too much that [Irvin] be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.” Id., at 728. In this case, as noted, supra, at 17, news stories about Enron contained nothing resembling the horrifying infor­ mation rife in reports about Irvin’s rampage of robberies and murders. Of key importance, Houston shares little in common with the rural community in which Irvin’s trial proceeded, and circulation figures for Houston media sources were far lower than the 95% saturation level Cite as: 561 U. S. ____ (2010) 29 Opinion of the Court recorded in Irvin, see App. to Brief for United States 15a (“The Houston Chronicle . . . reaches less than one-third of occupied households in Houston.” (internal quotation marks omitted)). Skilling’s seated jurors, moreover, exhib­ ited nothing like the display of bias shown in Irvin. See supra, at 24–26 (noting, inter alia, that none of Skilling’s jurors answered “yes” when asked if they “ha[d] an opinion about . . . Skilling”). See also post, at 19 (dissent) (distin­ guishing Mu’Min from Irvin on similar bases: the “offense occurred in [a large] metropolitan . . . area,” media “cover­ age was not as pervasive as in Irvin and did not contain the same sort of damaging information,” and “the seated jurors uniformly disclaimed having ever formed an opinion about the case” (internal quotation marks omitted)). In light of these large differences, the District Court had far less reason than did the trial court in Irvin to discredit jurors’ promises of fairness. The District Court, moreover, did not simply take venire members who proclaimed their impartiality at their word.30 As noted, all of Skilling’s jurors had already af­ firmed on their questionnaires that they would have no trouble basing a verdict only on the evidence at trial. Nevertheless, the court followed up with each individually to uncover concealed bias. This face-to-face opportunity to gauge demeanor and credibility, coupled with information from the questionnaires regarding jurors’ backgrounds, opinions, and sources of news, gave the court a sturdy foundation to assess fitness for jury service. See 554 F.3d, at 562 (The District Court made “thorough” credibility determinations that “requir[ed] more than just the [venire —————— 30 The court viewed with skepticism, for example, Venire Member 104’s promises that she could “abide by law,” follow the court’s instruc­ tions, and find Skilling not guilty if the Government did not prove its case, App. 1004a; “I have to gauge . . . demeanor, all the answers she gave me,” the court stated, and “[s]he persuaded me that she could not be fair and impartial, so she’s excused,” id., at 1006a. 30 SKILLING v. UNITED STATES Opinion of the Court members’] statements that [they] could be fair.”). The jury’s not-guilty verdict on nine insider-trading counts after nearly five days of deliberation, meanwhile, suggests the court’s assessments were accurate. See United States v. Haldeman, 559 F.2d 31, 60, n. 28 (CADC 1976).31 Skilling, we conclude, failed to show that his voir dire fell short of constitutional requirements.32 —————— 31 The dissent asserts that “the Government placed relatively little emphasis on [these] insider trading counts during its closing argu­ ment.” Post, at 39. As the record shows, however, counsel described in detail the evidence supporting Count 50, one of the insider-trading counts on which the jury returned a not-guilty verdict. See Record 37008–37010. Skilling, Government counsel asserted, sold “half of his stock” based on “material inside information” and then lied in testi­ mony before the Securities and Exchange Commission (SEC) by claim­ ing the “only reason [he] sold Enron stock was because of [the] Septem­ ber 11th [terrorist attacks].” Id., at 37009 (internal quotation marks omitted). As counsel summarized: “Mr. Skilling used our nation’s tragedy to cover his tracks. . . . I’d suggest . . . the reason he was lying is because he didn’t want [the SEC] to know that he had done it before. . . . [T]hat’s Count 50. That’s proof beyond a reasonable doubt.” Id., at 37010. Regarding the remaining insider-trading counts, counsel reminded jurors they had heard similar evidence of Skilling’s other sales, and urged them to “conclude, based on the evidence,” that “Skill­ ing had information that he used to sell his stock” at the “key periods in time.” Ibid. 32 Skilling emphasizes that voir dire did not weed out every juror who suffered from Enron’s collapse because the District Court failed to grant his for-cause challenge to Venire Member 29, whose retirement fund lost $50,000 due to ripple effects from the decline in the value of Enron stock. App. 880a. Critically, however, Venire Member 29 did not sit on Skilling’s jury: Instead, Skilling struck her using a peremptory chal­ lenge. “[I]f [a] defendant elects to cure [a trial judge’s erroneous for­ cause ruling] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat,” we have held, “he has not been deprived of any . . . constitutional right.” United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000). Indeed, the “use [of] a peremptory challenge to effect an instantaneous cure of the error” exemplifies “a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury.” Id., at 316. Cite as: 561 U. S. ____ (2010) 31 Opinion of the Court 3 Skilling also singles out several jurors in particular and contends they were openly biased. See United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (“[T]he seat­ ing of any juror who should have been dismissed for cause . . . require[s] reversal.”). In reviewing claims of this type, the deference due to district courts is at its pinnacle: “A trial court’s findings of juror impartiality may be over­ turned only for manifest error.” Mu’Min, 500 U.S., at 428 (internal quotation marks omitted). Skilling, moreover, unsuccessfully challenged only one of the seated jurors for cause, “strong evidence that he was convinced the [other] jurors were not biased and had not formed any opinions as to his guilt.” Beck v. Washington, 369 U.S. 541, 557–558 (1962). With these considerations in mind, we turn to Skilling’s specific allegations of juror partiality. Skilling contends that Juror 11—the only seated juror he challenged for cause—“expressed the most obvious bias.” Brief for Petitioner 35. See also post, at 36 (dis­ sent). Juror 11 stated that “greed on Enron’s part” trig­ gered the company’s bankruptcy and that corporate execu­ tives, driven by avarice, “walk a line that stretches sometimes the legality of something.” App. 854a–855a. But, as the Fifth Circuit accurately summarized, Juror 11 “had ‘no idea’ whether Skilling had ‘crossed that line,’ and he ‘didn’t say that’ every CEO is probably a crook. He also asserted that he could be fair and require the government to prove its case, that he did not believe everything he read in the paper, that he did not ‘get into the details’ of the Enron coverage, that he did not watch television, and that Enron was ‘old news.’ ” 554 F.3d, at 563–564. Despite his criticism of greed, Juror 11 remarked that Skilling “earned [his] salar[y],” App. 857a, and said he would have “no problem” telling his co-worker, who had 32 SKILLING v. UNITED STATES Opinion of the Court lost 401(k) funds due to Enron’s collapse, that the jury voted to acquit, if that scenario came to pass, id., at 854a. The District Court, noting that it had “looked [Juror 11] in the eye and . . . heard all his [answers],” found his asser­ tions of impartiality credible. Id., at 858a; cf. supra, at 29, n. 30. We agree with the Court of Appeals that “[t]he express finding that Juror 11 was fair is not reversible error.” 554 F.3d, at 564.33 Skilling also objected at trial to the seating of six spe­ cific jurors whom, he said, he would have excluded had he not already exhausted his peremptory challenges. See supra, at 8–9. Juror 20, he observes, “said she was ‘angry’ about Enron’s collapse and that she, too, had been ‘forced to forfeit [her] own 401(k) funds to survive layoffs.’ ” Reply Brief 13. But Juror 20 made clear during voir dire that she did not “personally blame” Skilling for the loss of her retirement account. App. 875a. Having not “pa[id] much attention” to Enron-related news, she “quite honestly” did not “have enough information to know” whether Skilling was probably guilty, id., at 873a, and she “th[ought] [she] could be” fair and impartial, id., at 875a. In light of these answers, the District Court did not commit manifest error in finding Juror 20 fit for jury service. The same is true of Juror 63, who, Skilling points out, wrote on her questionnaire “that [Skilling] ‘probably knew [he] w[as] breaking the law.’ ” Reply Brief 13. During voir dire, however, Juror 63 insisted that she did not “really have an opinion [about Skilling’s guilt] either way,” App. 936a; she did not “know what [she] was thinking” when she completed the questionnaire, but she “absolutely” presumed Skilling innocent and confirmed her under­ standing that the Government would “have to prove” his —————— 33 Skilling’s trial counsel and jury consultants apparently did not regard Juror 11 as so “obvious[ly] bias[ed],” Brief for Petitioner 35, as to warrant exercise of a peremptory challenge. Cite as: 561 U. S. ____ (2010) 33 Opinion of the Court guilt, id., at 937a. In response to follow-up questions from Skilling’s counsel, she again stated she would not presume that Skilling violated any laws and could “[a]bsolutely” give her word that she could be fair. Id., at 937a–938a. “Jurors,” we have recognized, “cannot be expected invaria­ bly to express themselves carefully or even consistently.” Yount, 467 U.S., at 1039. See also id., at 1040 (“It is here that the federal [appellate] court’s deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.”). From where we sit, we cannot conclude that Juror 63 was biased. The four remaining jurors Skilling said he would have excluded with extra peremptory strikes exhibited no sign of prejudice we can discern. See App. 891a–892a (Juror 38) (remembered no media coverage about Enron and said nothing in her experience would prevent her from being fair and impartial); Supp. App. 131sa–133sa, 136sa (Juror 67) (had no connection to Enron and no anger about its collapse); App. 969a (Juror 78) (did not “know much about” Enron); Supp. App. 165sa, App. 971a (Juror 84) (had not heard or read anything about Enron and said she did not “know enough to answer” the question whether she was angry about the company’s demise). Skilling’s counsel declined to ask follow-up questions of any of these jurors and, indeed, told Juror 84 he had nothing to ask because she “gave all the right answers.” Id., at 972a. Whatever Skilling’s reasons for wanting to strike these four indi­ viduals from his jury, he cannot credibly assert they dis­ played a disqualifying bias.34 —————— 34 Although Skilling raised no objection to Juror 10 and Juror 87 at trial, his briefs in this Court impugn their impartiality. Brief for Petitioner 14–15; Reply Brief 13. Even if we allowed these tardy pleas, the voir dire testimony of the two jurors gives sufficient assurance that they were unbiased. See, e.g., App. 850a–853a (Juror 10) (did not prejudge Skilling’s guilt, indicated he could follow the court’s instruc­ 34 SKILLING v. UNITED STATES Opinion of the Court In sum, Skilling failed to establish that a presumption of prejudice arose or that actual bias infected the jury that tried him. Jurors, the trial court correctly comprehended, need not enter the box with empty heads in order to de­ termine the facts impartially. “It is sufficient if the ju­ ror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court.” Irvin, 366 U.S., at 723. Taking account of the full record, rather than incomplete exchanges selectively culled from it, we find no cause to upset the lower courts’ judgment that Skilling’s jury met that measure. We therefore affirm the Fifth Circuit’s ruling that Skilling received a fair trial.35 III We next consider whether Skilling’s conspiracy convic­ tion was premised on an improper theory of honest­ services wire fraud. The honest-services statute, §1346, Skilling maintains, is unconstitutionally vague. Alterna­ tively, he contends that his conduct does not fall within the statute’s compass. A To place Skilling’s constitutional challenge in context, we first review the origin and subsequent application of —————— tions and make the Government prove its case, stated he could be fair to Skilling, and said he would “judge on the facts”); id., at 974a (Juror 87) (had “not formed an opinion” on whether Skilling was guilty and affirmed she could adhere to the presumption of innocence). 35 Our decisions have rightly set a high bar for allegations of juror prejudice due to pretrial publicity. See, e.g., Mu’Min, 500 U.S. 415; Patton v. Yount, 467 U.S. 1025 (1984); Murphy v. Florida, 421 U.S. 794 (1975). News coverage of civil and criminal trials of public interest conveys to society at large how our justice system operates. And it is a premise of that system that jurors will set aside their preconceptions when they enter the courtroom and decide cases based on the evidence presented. Trial judges generally take care so to instruct jurors, and the District Court did just that in this case. App. 1026a. Cite as: 561 U. S. ____ (2010) 35 Opinion of the Court the honest-services doctrine. 1 Enacted in 1872, the original mail-fraud provision, the predecessor of the modern-day mail- and wire-fraud laws, proscribed, without further elaboration, use of the mails to advance “any scheme or artifice to defraud.” See McNally v. United States, 483 U.S. 350, 356 (1987). In 1909, Con­ gress amended the statute to prohibit, as it does today, “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” §1341 (emphasis added); see id., at 357–358. Emphasizing Congress’ disjunctive phras­ ing, the Courts of Appeals, one after the other, interpreted the term “scheme or artifice to defraud” to include depri­ vations not only of money or property, but also of intangi­ ble rights. In an opinion credited with first presenting the intangi­ ble-rights theory, Shushan v. United States, 117 F.2d 110 (1941), the Fifth Circuit reviewed the mail-fraud prosecu­ tion of a public official who allegedly accepted bribes from entrepreneurs in exchange for urging city action beneficial to the bribe payers. “It is not true that because the [city] was to make and did make a saving by the operations there could not have been an intent to defraud,” the Court of Appeals maintained. Id., at 119. “A scheme to get a public contract on more favorable terms than would likely be got otherwise by bribing a public official,” the court observed, “would not only be a plan to commit the crime of bribery, but would also be a scheme to defraud the public.” Id., at 115. The Fifth Circuit’s opinion in Shushan stimulated the development of an “honest-services” doctrine. Unlike fraud in which the victim’s loss of money or property supplied the defendant’s gain, with one the mirror image of the other, see, e.g., United States v. Starr, 816 F.2d 94, 36 SKILLING v. UNITED STATES Opinion of the Court 101 (CA2 1987), the honest-services theory targeted cor­ ruption that lacked similar symmetry. While the offender profited, the betrayed party suffered no deprivation of money or property; instead, a third party, who had not been deceived, provided the enrichment. For example, if a city mayor (the offender) accepted a bribe from a third party in exchange for awarding that party a city contract, yet the contract terms were the same as any that could have been negotiated at arm’s length, the city (the be­ trayed party) would suffer no tangible loss. Cf. McNally, 483 U.S., at 360. Even if the scheme occasioned a money or property gain for the betrayed party, courts reasoned, actionable harm lay in the denial of that party’s right to the offender’s “honest services.” See, e.g., United States v. Dixon, 536 F.2d 1388, 1400 (CA2 1976). “Most often these cases . . . involved bribery of public officials,” United States v. Bohonus, 628 F.2d 1167, 1171 (CA9 1980), but courts also recognized private-sector honest-services fraud. In perhaps the earliest application of the theory to private actors, a District Court, reviewing a bribery scheme, explained: “When one tampers with [the employer-employee] re­ lationship for the purpose of causing the employee to breach his duty [to his employer,] he in effect is de­ frauding the employer of a lawful right. The actual deception that is practised is in the continued repre­ sentation of the employee to the employer that he is honest and loyal to the employer’s interests.” United States v. Procter & Gamble Co., 47 F. Supp. 676, 678 (Mass. 1942). Over time, “[a]n increasing number of courts” recognized that “a recreant employee”—public or private—“c[ould] be prosecuted under [the mail-fraud statute] if he breache[d] his allegiance to his employer by accepting bribes or kick­ backs in the course of his employment,” United States v. Cite as: 561 U. S. ____ (2010) 37 Opinion of the Court McNeive, 536 F.2d 1245, 1249 (CA8 1976); by 1982, all Courts of Appeals had embraced the honest-services the­ ory of fraud, Hurson, Limiting the Federal Mail Fraud Statute—A Legislative Approach, 20 Am. Crim. L. Rev. 423, 456 (1983).36 2 In 1987, this Court, in McNally v. United States, stopped the development of the intangible-rights doctrine in its tracks. McNally involved a state officer who, in selecting Kentucky’s insurance agent, arranged to procure a share of the agent’s commissions via kickbacks paid to companies the official partially controlled. 483 U.S., at 360. The prosecutor did not charge that, “in the absence of the alleged scheme[,] the Commonwealth would have paid a lower premium or secured better insurance.” Ibid. In­ stead, the prosecutor maintained that the kickback scheme “defraud[ed] the citizens and government of Ken­ tucky of their right to have the Commonwealth’s affairs conducted honestly.” Id., at 353. We held that the scheme did not qualify as mail fraud. “Rather than constru[ing] the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials,” we read the statute “as limited in scope to the protection of property rights.” Id., at 360. “If Congress desires to go further,” we stated, “it must speak more clearly.” Ibid. —————— 36 In addition to upholding honest-services prosecutions, courts also increasingly approved use of the mail-fraud statute to attack corruption that deprived victims of other kinds of intangible rights, including election fraud and privacy violations. See, e.g., Cleveland v. United States, 531 U.S. 12, 18, n. 2 (2000); McNally v. United States, 483 U.S. 350, 362–364, and nn. 1–4 (1987) (STEVENS, J., dissenting). 38 SKILLING v. UNITED STATES Opinion of the Court 3 Congress responded swiftly. The following year, it enacted a new statute “specifically to cover one of the ‘intangible rights’ that lower courts had protected . . . prior to McNally: ‘the intangible right of honest services.’ ” Cleveland v. United States, 531 U.S. 12, 19–20 (2000). In full, the honest-services statute stated: “For the purposes of th[e] chapter [of the United States Code that prohibits, inter alia, mail fraud, §1341, and wire fraud, §1343], the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest ser­ vices.” §1346. B Congress, Skilling charges, reacted quickly but not clearly: He asserts that §1346 is unconstitutionally vague. To satisfy due process, “a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordi­ nary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). The void-for-vagueness doctrine embraces these requirements. According to Skilling, §1346 meets neither of the two due process essentials. First, the phrase “the intangible right of honest services,” he contends, does not adequately define what behavior it bars. Brief for Petitioner 38–39. Second, he alleges, §1346’s “standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections,” thereby “facilitat[ing] opportunistic and arbitrary prosecutions.” Id., at 44 (quoting Kolender, 461 U.S., at 358). In urging invalidation of §1346, Skilling swims against our case law’s current, which requires us, if we can, to construe, not condemn, Congress’ enactments. See, e.g., Cite as: 561 U. S. ____ (2010) 39 Opinion of the Court Civil Service Comm’n v. Letter Carriers, 413 U.S. 548, 571 (1973). See also United States v. National Dairy Products Corp., 372 U.S. 29, 32 (1963) (stressing, in response to a vagueness challenge, “[t]he strong presumptive validity that attaches to an Act of Congress”). Alert to §1346’s potential breadth, the Courts of Appeals have divided on how best to interpret the statute.37 Uniformly, however, they have declined to throw out the statute as irremedia­ bly vague.38 We agree that §1346 should be construed rather than invalidated. First, we look to the doctrine developed in pre-McNally cases in an endeavor to ascertain the mean­ ing of the phrase “the intangible right of honest services.” Second, to preserve what Congress certainly intended the statute to cover, we pare that body of precedent down to its core: In the main, the pre-McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Confined to these paramount —————— 37 Courts have disagreed about whether §1346 prosecutions must be based on a violation of state law, compare, e.g., United States v. Brum ley, 116 F.3d 728, 734–735 (CA5 1997) (en banc), with, e.g., United States v. Weyhrauch, 548 F.3d 1237, 1245–1246 (CA9 2008), vacated and remanded, post, p. ___; whether a defendant must contemplate that the victim suffer economic harm, compare, e.g., United States v. Sun- Diamond Growers of Cal., 138 F.3d 961, 973 (CADC 1998), with, e.g., United States v. Black, 530 F.3d 596, 600–602 (CA7 2008), vacated and remanded, post, p. ___; and whether the defendant must act in pursuit of private gain, compare, e.g., United States v. Bloom, 149 F.3d 649, 655 (CA7 1998), with, e.g., United States v. Panarella, 277 F.3d 678, 692 (CA3 2002). 38 See, e.g., United States v. Rybicki, 354 F.3d 124, 132 (CA2 2003) (en banc); United States v. Hausmann, 345 F.3d 952, 958 (CA7 2003); United States v. Welch, 327 F.3d 1081, 1109, n. 29 (CA10 2003); United States v. Frega, 179 F.3d 793, 803 (CA9 1999); Brumley, 116 F.3d, at 732–733; United States v. Frost, 125 F.3d 346, 370–372 (CA6 1997); United States v. Waymer, 55 F.3d 564, 568–569 (CA11 1995); United States v. Bryan, 58 F.3d 933, 941 (CA4 1995). 40 SKILLING v. UNITED STATES Opinion of the Court applications, §1346 presents no vagueness problem. 1 There is no doubt that Congress intended §1346 to refer to and incorporate the honest-services doctrine recognized in Court of Appeals’ decisions before McNally derailed the intangible-rights theory of fraud. See Brief for Petitioner 39; Brief for United States 37–38; post, at 2, 8 (SCALIA, J., concurring in part and concurring in judgment). Congress enacted §1346 on the heels of McNally and drafted the statute using that decision’s terminology. See 483 U.S., at 355 (“intangible righ[t]”); id., at 362 (STEVENS, J., dis­ senting) (“right to . . . honest services”).39 As the Second Circuit observed in its leading analysis of §1346: “The definite article ‘the’ suggests that ‘intangible right of honest services’ had a specific meaning to Congress when it enacted the statute—Congress was recriminalizing mail- and wire-fraud schemes to de­ prive others of that ‘intangible right of honest ser­ vices,’ which had been protected before McNally, not all intangible rights of honest services whatever they might be thought to be.” United States v. Rybicki, 354 F.3d 124, 137–138 (2003) (en banc).40 —————— 39 Although verbal formulations varied slightly, the words employed by the Courts of Appeals prior to McNally described the same concept: “honest services,” e.g., United States v. Bruno, 809 F.2d 1097, 1105 (CA5 1987); “honest and faithful services,” e.g., United States v. Brown, 540 F.2d 364, 374 (CA8 1976); and “faithful and honest services,” e.g., United States v. Diggs, 613 F.2d 988, 998 (CADC 1979). 40 We considered a similar Court-Congress interplay in McDermott Int’l, Inc. v. Wilander, 498 U.S. 337 (1991), which involved the inter­ pretation of the term “seaman” in the Jones Act, 46 U.S. C. App. §688 (2000 ed.). The Act, we recognized, “respond[ed] directly to” our deci­ sion in The Osceola, 189 U.S. 158 (1903), and “adopt[ed] without further elaboration the term used in” that case, so we “assume[d] that the Jones Act use[d] ‘seaman’ in the same way.” 498 U.S., at 342. Cite as: 561 U. S. ____ (2010) 41 Opinion of the Court 2 Satisfied that Congress, by enacting §1346, “meant to reinstate the body of pre-McNally honest-services law,” post, at 8 (opinion of SCALIA, J.), we have surveyed that case law. See infra, at 43–44, 46. In parsing the Courts of Appeals decisions, we acknowledge that Skilling’s vague­ ness challenge has force, for honest-services decisions preceding McNally were not models of clarity or consis­ tency. See Brief for Petitioner 39–42 (describing divisions of opinions). See also post, at 3–7 (opinion of SCALIA, J.). While the honest-services cases preceding McNally domi­ nantly and consistently applied the fraud statute to brib­ ery and kickback schemes—schemes that were the basis of most honest-services prosecutions—there was consider­ able disarray over the statute’s application to conduct outside that core category. In light of this disarray, Skill­ ing urges us, as he urged the Fifth Circuit, to invalidate the statute in toto. Brief for Petitioner 48 (Section 1346 “is intolerably and unconstitutionally vague.”); Brief of De­ fendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21 (“[S]ection 1346 should be invalidated as unlawfully vague on its face.”). It has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting con­ struction. See, e.g., Hooper v. California, 155 U.S. 648, 657 (1895) (“The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (emphasis added)). See also Boos v. Barry, 485 U.S. 312, 330–331 (1988); Schneider v. Smith, 390 U.S. 17, 26 (1968).41 We have accordingly —————— 41 “This cardinal principle has its roots in Chief Justice Marshall’s opinion for the Court in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), and has for so long been applied by this Court that it is beyond debate.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). See, e.g., 42 SKILLING v. UNITED STATES Opinion of the Court instructed “the federal courts . . . to avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible.” Boos, 485 U.S., at 331; see United States v. Harriss, 347 U.S. 612, 618 (1954) (“[I]f the general class of offenses to which the statute is di­ rected is plainly within its terms, the statute will not be struck down as vague . . . . And if this general class of offenses can be made constitutionally definite by a reason­ able construction of the statute, this Court is under a duty to give the statute that construction.”). Arguing against any limiting construction, Skilling contends that it is impossible to identify a salvageable honest-services core; “the pre-McNally caselaw,” he as­ serts, “is a hodgepodge of oft-conflicting holdings” that are “hopelessly unclear.” Brief for Petitioner 39 (some capi­ talization and italics omitted). We have rejected an argu­ ment of the same tenor before. In Civil Service Comm’n v. Letter Carriers, federal employees challenged a provision of the Hatch Act that incorporated earlier decisions of the United States Civil Service Commission enforcing a simi­ lar law. “[T]he several thousand adjudications of the Civil —————— New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500–501 (1979); United States v. Thirty-seven Photographs, 402 U.S. 363, 368–370 (1971); Machinists v. Street, 367 U.S. 740, 749–750 (1961); United States v. Rumely, 345 U.S. 41, 45 (1953); Winters v. New York, 333 U.S. 507, 517 (1948); Crowell v. Benson, 285 U.S. 22, 62 (1932); Lucas v. Alexander, 279 U.S. 573, 577 (1929); Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 346 (1928); Panama R. Co. v. Johnson, 264 U.S. 375, 390 (1924); United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407–408 (1909); United States v. Coombs, 12 Pet. 72, 76 (1838) (Story, J.); Parsons v. Bedford, 3 Pet. 433, 448–449 (1830) (Story, J.). Cf. Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942) (statute made it criminal to address “any offensive, derisive, or annoy­ ing word” to any person in a public place; vagueness obviated by state­ court construction of the statute to cover only words having “a direct tendency to cause acts of violence” by the addressee (internal quotation marks omitted)). Cite as: 561 U. S. ____ (2010) 43 Opinion of the Court Service Commission,” the employees maintained, were “an impenetrable jungle”—“undiscoverable, inconsistent, [and] incapable of yielding any meaningful rules to govern present or future conduct.” 413 U.S., at 571. Mindful that “our task [wa]s not to destroy the Act if we c[ould], but to construe it,” we held that “the rules that had evolved over the years from repeated adjudications were subject to sufficiently clear and summary statement.” Id., at 571–572. A similar observation may be made here. Although some applications of the pre-McNally honest-services doctrine occasioned disagreement among the Courts of Appeals, these cases do not cloud the doctrine’s solid core: The “vast majority” of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes. United States v. Runnels, 833 F.2d 1183, 1187 (CA6 1987); see Brief for United States 42, and n. 4 (citing dozens of examples).42 Indeed, the McNally case itself, which spurred Congress to enact §1346, presented a paradigmatic kickback fact pattern. 483 U.S., at 352–353, 360. Congress’ reversal of McNally and reinstatement of the honest-services doctrine, we conclude, can and should be salvaged by confining its scope to the core pre-McNally applications. As already noted, supra, at 35–36, the honest-services doctrine had its genesis in prosecutions involving bribery —————— 42 JUSTICE SCALIA emphasizes divisions in the Courts of Appeals re­ garding the source and scope of fiduciary duties. Post, at 3–5. But these debates were rare in bribe and kickback cases. The existence of a fiduciary relationship, under any definition of that term, was usually beyond dispute; examples include public official-public, see, e.g., United States v. Mandel, 591 F.2d 1347 (CA4 1979); employee-employer, see, e.g., United States v. Bohonus, 628 F.2d 1167 (CA9 1980); and union official-union members, see, e.g., United States v. Price, 788 F.2d 234 (CA4 1986). See generally Chiarella v. United States, 445 U.S. 222, 233 (1980) (noting the “established doctrine that [a fiduciary] duty arises from a specific relationship between two parties”). 44 SKILLING v. UNITED STATES Opinion of the Court allegations. See Shushan, 117 F.2d, at 115 (public sec­ tor); Procter & Gamble Co., 47 F. Supp., at 678 (private sector). See also United States v. Orsburn, 525 F.3d 543, 546 (CA7 2008). Both before McNally and after §1346’s enactment, Courts of Appeals described schemes involving bribes or kickbacks as “core . . . honest services fraud precedents,” United States v. Czubinski, 106 F.3d 1069, 1077 (CA1 1997); “paradigm case[s],” United States v. deVegter, 198 F.3d 1324, 1327–1328 (CA11 1999); “[t]he most obvious form of honest services fraud,” United States v. Carbo, 572 F.3d 112, 115 (CA3 2009); “core misconduct covered by the statute,” United States v. Urciuoli, 513 F.3d 290, 294 (CA1 2008); “most [of the] honest services cases,” United States v. Sorich, 523 F.3d 702, 707 (CA7 2008); “typical,” United States v. Brown, 540 F.2d 364, 374 (CA8 1976); “clear-cut,” United States v. Mandel, 591 F.2d 1347, 1363 (CA4 1979); and “uniformly . . . cover[ed],” United States v. Paradies, 98 F.3d 1266, 1283, n. 30 (CA11 1996). See also Tr. of Oral Arg. 43 (counsel for the Government) (“[T]he bulk of pre-McNally honest services cases” entailed bribes or kickbacks); Brief for Petitioner 49 (“Bribes and kickbacks were the paradigm [pre-McNally] cases,” constituting “[t]he overwhelming majority of prosecutions for honest services fraud.”). In view of this history, there is no doubt that Congress intended §1346 to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine.43 To preserve —————— 43 Apprised that a broader reading of §1346 could render the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at bribery and kickback schemes. Cf. Levin v. Commerce Energy, Inc., 560 U. S. ___, ___ (2010) (slip op., at 11) (“[C]ourts may attempt . . . to implement what the legislature would have willed had it been apprised of the constitutional infir­ mity.”); United States v. Booker, 543 U.S. 220, 246 (2005) (“We seek to Cite as: 561 U. S. ____ (2010) 45 Opinion of the Court the statute without transgressing constitutional limita­ tions, we now hold that §1346 criminalizes only the bribe­ and-kickback core of the pre-McNally case law.44 3 The Government urges us to go further by locating within §1346’s compass another category of proscribed conduct: “undisclosed self-dealing by a public official or private employee—i.e., the taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” Id., at 43–44. “[T]he theory of liability in McNally itself was nondisclosure of a conflicting financial interest,” the Government observes, —————— determine what ‘Congress would have intended’ in light of the Court’s constitutional holding.”). 44 JUSTICE SCALIA charges that our construction of §1346 is “not inter­ pretation but invention.” Post, at 8. Stating that he “know[s] of no precedent for . . . ‘paring down’ ” the pre-McNally case law to its core, ibid., he contends that the Court today “wield[s] a power we long ago abjured: the power to define new federal crimes,” post, at 1. See also, e.g., post, at 9, 10, 11. As noted supra, at 41–42, and n. 41, cases “paring down” federal statutes to avoid constitutional shoals are legion. These cases recognize that the Court does not legislate, but instead respects the legislature, by preserving a statute through a limiting interpretation. See United States v. Lanier, 520 U.S. 259, 267–268, n. 6 (1997) (This Court does not “create a common law crime” by adopt­ ing a “narrow[ing] constru[ction].” (internal quotation marks omitted)); supra, at 44–45, n. 43. Given that the Courts of Appeals uniformly recognized bribery and kickback schemes as honest-services fraud before McNally, 483 U.S. 350, and that these schemes composed the lion’s share of honest-services cases, limiting §1346 to these heartland applications is surely “fairly possible.” Boos v. Barry, 485 U.S. 312, 331 (1988); cf. Clark v. Martinez, 543 U.S. 371, 380 (2005) (opinion of the Court by SCALIA, J.) (when adopting a limiting construction, “[t]he lowest common denominator, as it were, must govern”). So construed, the statute is not unconstitutionally vague. See infra, at 48–49; post, at 8. Only by taking a wrecking ball to a statute that can be salvaged through a reasonable narrowing interpretation would we act out of step with precedent. 46 SKILLING v. UNITED STATES Opinion of the Court and “Congress clearly intended to revive th[at] nondisclo­ sure theory.” Id., at 44. Moreover, “[a]lthough not as numerous as the bribery and kickback cases,” the Gov­ ernment asserts, “the pre-McNally cases involving undis­ closed self-dealing were abundant.” Ibid. Neither of these contentions withstands close inspec­ tion. McNally, as we have already observed, supra, at 37, 43, involved a classic kickback scheme: A public official, in exchange for routing Kentucky’s insurance business through a middleman company, arranged for that com­ pany to share its commissions with entities in which the official held an interest. 483 U.S., at 352–353, 360. This was no mere failure to disclose a conflict of interest; rather, the official conspired with a third party so that both would profit from wealth generated by public con­ tracts. See id., at 352–353. Reading §1346 to proscribe bribes and kickbacks—and nothing more—satisfies Con­ gress’ undoubted aim to reverse McNally on its facts. Nor are we persuaded that the pre-McNally conflict-of­ interest cases constitute core applications of the honest­ services doctrine. Although the Courts of Appeals upheld honest-services convictions for “some schemes of non­ disclosure and concealment of material information,” Mandel, 591 F.2d, at 1361, they reached no consensus on which schemes qualified. In light of the relative infre­ quency of conflict-of-interest prosecutions in comparison to bribery and kickback charges, and the intercircuit incon­ sistencies they produced, we conclude that a reasonable limiting construction of §1346 must exclude this amor­ phous category of cases. Further dispelling doubt on this point is the familiar principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Cleveland, 531 U.S., at 25 (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)). “This interpretive guide is especially appropriate in construing [§1346] because . . . mail [and Cite as: 561 U. S. ____ (2010) 47 Opinion of the Court wire] fraud [are] predicate offense[s] under [the Racketeer Influenced and Corrupt Organizations Act], 18 U.S. C. §1961(1) (1994 ed., Supp. IV), and the money laundering statute, §1956(c)(7)(A).” Cleveland, 531 U.S., at 25. Holding that honest-services fraud does not encompass conduct more wide-ranging than the paradigmatic cases of bribes and kickbacks, we resist the Government’s less constrained construction absent Congress’ clear instruc­ tion otherwise. E.g., United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221–222 (1952). In sum, our construction of §1346 “establish[es] a uni­ form national standard, define[s] honest services with clarity, reach[es] only seriously culpable conduct, and accomplish[es] Congress’s goal of ‘overruling’ McNally.” Brief for Albert W. Alschuler as Amicus Curiae in Wey hrauch v. United States, O. T. 2009, No. 08–1196, pp. 28– 29. “If Congress desires to go further,” we reiterate, “it must speak more clearly than it has.” McNally, 483 U.S., at 360.45 —————— 45 If Congress were to take up the enterprise of criminalizing “undis­ closed self-dealing by a public official or private employee,” Brief for United States 43, it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty,” so long as the employee acts with a specific intent to deceive and the undisclosed conduct could influence the victim to change its behavior. Id., at 43–44. See also id., at 40–41. That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohi­ bition in this context. 48 SKILLING v. UNITED STATES Opinion of the Court 4 Interpreted to encompass only bribery and kickback schemes, §1346 is not unconstitutionally vague. Recall that the void-for-vagueness doctrine addresses concerns about (1) fair notice and (2) arbitrary and discriminatory prosecutions. See Kolender, 461 U.S., at 357. A prohibi­ tion on fraudulently depriving another of one’s honest services by accepting bribes or kickbacks does not present a problem on either score. As to fair notice, “whatever the school of thought con­ cerning the scope and meaning of ” §1346, it has always been “as plain as a pikestaff that” bribes and kickbacks constitute honest-services fraud, Williams v. United States, 341 U.S. 97, 101 (1951), and the statute’s mens rea requirement further blunts any notice concern, see, e.g., Screws v. United States, 325 U.S. 91, 101–104 (1945) (plurality opinion). See also Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (“[E]ven if the outermost boundaries of [a statute are] imprecise, any such uncertainty has little relevance . . . where appellants’ conduct falls squarely within the ‘hard core’ of the statute’s proscriptions.”). Today’s decision clarifies that no other misconduct falls within §1346’s province. See United States v. Lanier, 520 U.S. 259, 266 (1997) (“[C]larity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute.”). As to arbitrary prosecutions, we perceive no significant risk that the honest-services statute, as we interpret it today, will be stretched out of shape. Its prohibition on bribes and kickbacks draws content not only from the pre- McNally case law, but also from federal statutes proscrib­ ing—and defining—similar crimes. See, e.g., 18 U.S. C. §§201(b), 666(a)(2); 41 U.S. C. §52(2) (“The term ‘kick­ back’ means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated Cite as: 561 U. S. ____ (2010) 49 Opinion of the Court persons] for the purpose of improperly obtaining or re­ warding favorable treatment in connection with [enumer­ ated circumstances].”).46 See also, e.g., United States v. Ganim, 510 F.3d 134, 147–149 (CA2 2007) (Sotomayor, J.) (reviewing honest-services conviction involving bribery in light of elements of bribery under other federal statutes); United States v. Whitfield, 590 F.3d 325, 352–353 (CA5 2009); United States v. Kemp, 500 F.3d 257, 281–286 (CA3 2007). A criminal defendant who participated in a bribery or kickback scheme, in short, cannot tenably complain about prosecution under §1346 on vagueness grounds. C It remains to determine whether Skilling’s conduct violated §1346. Skilling’s honest-services prosecution, the Government concedes, was not “prototypical.” Brief for United States 49. The Government charged Skilling with conspiring to defraud Enron’s shareholders by misrepre­ senting the company’s fiscal health, thereby artificially inflating its stock price. It was the Government’s theory at trial that Skilling “profited from the fraudulent scheme . . . through the receipt of salary and bonuses, . . . and through the sale of approximately $200 million in Enron stock, which netted him $89 million.” Id., at 51. The Government did not, at any time, allege that Skill­ ing solicited or accepted side payments from a third party in exchange for making these misrepresentations. See Record 41328 (May 11, 2006 Letter from the Government to the District Court) (“[T]he indictment does not allege, and the government’s evidence did not show, that [Skill­ —————— 46 Overlap with other federal statutes does not render §1346 superflu­ ous. The principal federal bribery statute, §201, for example, generally applies only to federal public officials, so §1346’s application to state and local corruption and to private-sector fraud reaches misconduct that might otherwise go unpunished. 50 SKILLING v. UNITED STATES Opinion of the Court ing] engaged in bribery.”). It is therefore clear that, as we read §1346, Skilling did not commit honest-services fraud. Because the indictment alleged three objects of the con- spiracy—honest-services wire fraud, money-or-property wire fraud, and securities fraud—Skilling’s conviction is flawed. See Yates v. United States, 354 U.S. 298 (1957) (constitutional error occurs when a jury is in­ structed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory). This determination, however, does not necessarily require reversal of the conspiracy conviction; we recently con­ firmed, in Hedgpeth v. Pulido, 555 U. S. ___ (2008) (per curiam), that errors of the Yates variety are subject to harmless-error analysis. The parties vigorously dispute whether the error was harmless. Compare Brief for United States 52 (“[A]ny juror who voted for conviction based on [the honest-services theory] also would have found [Skilling] guilty of conspiring to commit securities fraud.”) with Reply Brief 30 (The Government “cannot show that the conspiracy conviction rested only on the securities-fraud theory, rather than the distinct, legally­ flawed honest-services theory.”). We leave this dispute for resolution on remand.47 Whether potential reversal on the conspiracy count touches any of Skilling’s other convictions is also an open question. All of his convictions, Skilling contends, hinged on the conspiracy count and, like dominoes, must fall if it —————— 47 The Fifth Circuit appeared to prejudge this issue, noting that, “if any of the three objects of Skilling’s conspiracy offers a legally insuffi­ cient theory,” it “must set aside his conviction.” 554 F.3d, at 543. That reasoning relied on the mistaken premise that Hedgpeth v. Pulido, 555 U. S. ___ (2008) (per curiam), governs only cases on collateral review. See 554 F.3d, at 543, n. 10. Harmless-error analysis, we clarify, applies equally to cases on direct appeal. Accordingly, the Fifth Circuit, on remand, should take a fresh look at the parties’ harmless-error arguments. Cite as: 561 U. S. ____ (2010) 51 Opinion of the Court falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, App. 1141a–1142a, but the Fifth Circuit had no occasion to rule on it. That court may do so on remand. * * * For the foregoing reasons, we affirm the Fifth Circuit’s ruling on Skilling’s fair-trial argument, vacate its ruling on his conspiracy conviction, and remand the case for proceedings consistent with this opinion. It is so ordered. Cite as: 561 U. S. ____ (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1394 _________________ JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 2010] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom JUSTICE KENNEDY joins except as to Part III, concurring in part and concurring in the judgment.

In 2001, Enron Corporation, then the seventh highest­ revenue-grossing company in America, crashed into bank­ ruptcy. We consider in this opinion two questions arising from the prosecution of Jeffrey Skilling, a longtime Enron executive, for crimes committed before the corporation’s collapse. First, did pretrial publicity and community prevent Skilling from obtaining a fair trial? Second, did the jury improperly convict Skilling of con­ spiracy to commit “honest-services” wire fraud, 18 U.S. C. 1343, 1346? Answering no to both questions, the Fifth Circuit af­ firmed Skilling’s convictions. We conclude, in common with the Court of Appeals, that Skilling’s fair-trial argu­ ment fails; Skilling, we hold, did not establish that a presumption of juror arose or that actual bias infected the jury that tried him. But we disagree with the Fifth Circuit’s honest-services ruling. In proscribing fraudulent deprivations of “the intangible right of honest services,” Congress intended at least to reach schemes to defraud involving bribes and kickbacks. Con­ 2 SKILLING v. UNITED STATES Opinion of the Court struing the honest-services statute to extend beyond that core meaning, we conclude, would encounter a vagueness shoal. We therefore hold that covers only bribery and kickback schemes. Because Skilling’s alleged miscon­ duct entailed no bribe or kickback, it does not fall within ’s proscription. We therefore affirm in part and vacate in part. I Founded in 1985, Enron Corporation grew from its headquarters in Houston, Texas, into one of the world’s leading energy companies. Skilling launched his career there in 1990 when Kenneth Lay, the company’s founder, hired him to head an Enron subsidiary. Skilling steadily rose through the corporation’s ranks, serving as president and chief operating officer, and then, beginning in Febru­ ary 2001, as chief executive officer. Six months later, on August 14, 2001, Skilling resigned from Enron. Less than four months after Skilling’s departure, Enron spiraled into bankruptcy. The company’s stock, which had traded at $90 per share in August 2000, plummeted to pennies per share in late 2001. Attempting to comprehend what caused the corporation’s collapse, the U. S. Depart­ ment of Justice formed an Enron Task Force, comprising prosecutors and FBI agents from around the Nation. The Government’s investigation uncovered an elaborate con­ spiracy to prop up Enron’s short-run stock prices by over­ stating the company’s financial well-being. In the years following Enron’s bankruptcy, the Government prosecuted dozens of Enron employees who participated in the scheme. In time, the Government worked its way up the corporation’s chain of command: On July 7, 2004, a grand jury indicted Skilling, Lay, and Richard Causey, Enron’s former chief accounting officer. These three defendants, the indictment alleged, “engaged in a wide-ranging scheme to deceive the in­ Cite as: 561 U. S. (2010) 3 Opinion of the Court vesting public, including Enron’s shareholders, about the true performance of Enron’s businesses by: (a) manipulating Enron’s publicly reported financial results; and (b) making public statements and repre­ sentations about Enron’s financial performance and results that were false and misleading.” App. ¶5, p. 277a. Skilling and his co-conspirators, the indictment continued, “enriched themselves as a result of the scheme through salary, bonuses, grants of stock and stock options, other profits, and prestige.” at 280a. Count 1 of the indictment charged Skilling with con­ spiracy to commit securities and wire fraud; in particular, it alleged that Skilling had sought to “depriv[e] Enron and its shareholders of the intangible right of [his] honest services.” at 318a.1 The indictment further charged Skilling with more than 25 substantive counts of securities fraud, wire fraud, making false representations to Enron’s auditors, and insider trading. In November 2004, Skilling moved to transfer the trial to another venue; he contended that hostility toward him in Houston, coupled with extensive pretrial publicity, had poisoned potential jurors. To support this assertion, Skill­ ing, aided by media experts, submitted hundreds of news reports detailing Enron’s downfall; he also presented affidavits from the experts he engaged portraying commu­ nity attitudes in Houston in comparison to other potential venues. The U. S. District Court for the Southern District of —————— 1 The mail- and wire-fraud statutes criminalize the use of the mails or wires in furtherance of “any scheme or artifice to defraud, or for obtain­ ing money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S. C. (mail fraud); (wire fraud). The honest-services statute, defines “the term ‘scheme or artifice to defraud’ ” in these provisions to include “a scheme or artifice to deprive another of the intangible right of honest services.” 4 SKILLING v. UNITED STATES Opinion of the Court Texas, in accord with rulings in two earlier instituted Enron-related prosecutions,2 denied the venue-transfer motion. Despite “isolated incidents of intemperate com­ mentary,” the court media coverage “ha[d] [mostly] been objective and unemotional,” and the facts of the case were “neither heinous nor sensational.” App. to Brief for United States 10a–11a.3 Moreover, “courts ha[d] commonly” favored “effective voir dire to ferret out any [juror] bias.” at 18a. Pretrial publicity about the case, the court concluded, did not warrant a presumption that Skilling would be unable to obtain a fair trial in Houston. at 22a. In the months leading up to the trial, the District Court solicited from the parties questions the court might use to screen prospective jurors. Unable to agree on a ques- tionnaire’s format and content, Skilling and the Govern­ ment submitted dueling documents. On venire members’ sources of Enron-related news, for example, the Govern­ —————— 2 See United ; Order in United States v. Hirko, No. 4:03–cr–00093 (SD Tex., Nov. 24, 2004), Doc. 484, p. 6. These rulings were made by two other judges of the same District. Three judges residing in the area thus independently found that defendants in Enron-related cases could obtain a fair trial in Houston. 3 Painting a different picture of the media coverage surrounding En­ ron’s collapse, JUSTICE SOTOMAYOR’s opinion relies heavily on affidavits of media experts and jury consultants submitted by Skilling in support of his venue-transfer motion. E.g., post, at 2, 3, 4, 5 (opinion concurring in part and dissenting in part) (hereinafter dissent); post, at 5, n. 2, and 23, n. 10; post, at and 35, n. 22. These Skilling-employed experts selected and emphasized negative statements in various news stories. But the District Court Judge did not find the experts’ samples repre­ sentative of the coverage at large; having “[m]eticulous[ly] review[ed] all of the evidence” Skilling presented, the court concluded that “inci­ dents [of news reports using] less-than-objective language” were dwarfed by “the largely fact-based tone of most of the articles.” App. to Brief for United States 7a, 10a, 11a. See also post, at 3 (acknowledging that “many of the stories were straightforward news items”). Cite as: 561 U. S. (2010) 5 Opinion of the Court ment proposed that they tick boxes from a checklist of generic labels such as “[t]elevision,” “[n]ewspaper,” and “[r]adio,” Record 8415; Skilling proposed more probing questions asking venire members to list the specific names of their media sources and to report on “what st[ood] out in [their] mind[s]” of “all the things [they] ha[d] seen, heard or read about Enron,” at 8404–8405. The District Court rejected the Government’s sparer inquiries in favor of Skilling’s submission. Skilling’s questions “[we]re more helpful,” the court said, “because [they] [we]re generally open-ended and w[ould] allow the potential jurors to give us more meaningful informa­ tion.” The court converted Skilling’s submis­ sion, with slight modifications, into a 77-question, 14-page document that asked prospective jurors about, inter alia, their sources of news and exposure to Enron-related pub­ licity, beliefs concerning Enron and what caused its col­ lapse, opinions regarding the defendants and their possi­ ble guilt or innocence, and relationships to the company and to anyone affected by its demise.4 —————— 4 Questions included the following: “What are your opinions about the compensation that executives of large corporations receive?”; “Have you, any family members, or friends ever worked for or applied for work with,” “done business with,” or “owned stock in Enron Corporation or any Enron subsidiaries and partnership?”; “Do you know anyone who has been negatively affected or hurt in any way by what happened at Enron?”; “Do you have an opinion about the cause of the collapse of Enron? If YES, what is your opinion? On what do you base your opinion?”; “Have you heard or read about any of the Enron cases? If YES, please tell us the name of all sources from which you have heard or read about the Enron cases.”; “Have you read any books or seen any movies about Enron? If YES, please describe.”; “Are you angry about what happened with Enron? If YES, please explain.”; “Do you have an opinion about Jeffrey Skilling [?] If YES, what is your opinion? On what do you base your opinion?”; “Based on anything you have heard, read, or been told[,] do you have any opinion about the guilt or innocence of Jeffrey Skilling[?] If YES please explain.”; “[W]ould any opinion you may have formed regarding Enron or any of 6 SKILLING v. UNITED STATES Opinion of the Court In November 2005, the District Court mailed the ques­ tionnaire to 400 prospective jurors and received responses from nearly all the addressees. The court granted hard­ ship exemptions to approximately 90 individuals, at 11773–11774, and the parties, with the court’s approval, further winnowed the pool by excusing another 119 for cause, hardship, or physical disability, 13594. The parties agreed to exclude, in particular, “each and every” prospective juror who said that a preexisting opinion about Enron or the defendants would prevent her from impartially considering the evidence at trial. at 68. On December 28, 2005, three weeks before the date scheduled for the commencement of trial, Causey pleaded guilty. Skilling’s attorneys immediately requested a con­ tinuance, and the District Court agreed to delay the pro­ ceedings until the end of January 2006. In the interim, Skilling renewed his change-of-venue motion, arguing that the juror questionnaires revealed pervasive bias and that news accounts of Causey’s guilty plea fur­ ther tainted the jury pool. If Houston remained the trial venue, Skilling urged that “jurors need to be questioned individually by both the Court and counsel” concerning their opinions of Enron and “publicity issues.” at 12074. The District Court again declined to move the trial. Skilling, the court concluded, still had not “establish[ed] that pretrial publicity and/or community raise[d] a presumption of inherent jury” The questionnaires and voir dire, the court provided safeguards adequate to ensure an impartial jury. —————— the defendants prevent you from impartially considering the evidence presented during the trial of Jeffrey Skilling[?] If YES or UNSURE please explain.”; “Is there anything else you feel is important for the court to know about you?” Record 13013–130. Cite as: 561 U. S. (2010) 7 Opinion of the Court –14116. Denying Skilling’s request for attorney-led voir dire, the court said that in 17 years on the bench: “I’ve found I get more forthcoming responses from potential jurors than the lawyers on either side. I don’t know whether people are suspicious of lawyers— but I think if I ask a person a question, I will get a candid response much easier than if a lawyer asks the question.” But the court promised to give counsel an opportunity to ask follow-up questions, ib and it agreed that venire members should be examined individually about pretrial publicity, at 1–3. The court also allotted the defendants jointly 14 peremptory challenges, 2 more than the standard number prescribed by Federal Rule of Crimi­ nal Procedure 24(b)(2) and (c)(4)(B). 3–75. Voir dire began on January 30, 2006. The District Court first emphasized to the venire the importance of impartial­ ity and explained the presumption of innocence and the Government’s burden of proof. The trial, the court next instructed, was not a forum “to seek vengeance against Enron’s former officers,” or to “provide remedies for” its victims. App. 823a. “The bottom line,” the court stressed, “is that we want jurors who will faithfully, consci­ entiously and impartially serve if selected.” at 823a– 824a. In response to the court’s query whether any pro­ spective juror questioned her ability to adhere to these instructions, two individuals indicated that they could not be fair; they were therefore excused for cause, at 816a, 819a–820a. After questioning the venire as a group,5 the District Court brought prospective jurors one by one to the bench —————— 5 Among other questions, the court asked whether sympathy toward the victims of Enron’s collapse or a desire to see justice done would overpower prospective jurors’ impartiality. App. 839a–840a. 8 SKILLING v. UNITED STATES Opinion of the Court for individual examination. Although the questions var­ ied, the process generally tracked the following format: The court asked about exposure to Enron-related news and the content of any stories that stood out in the pro­ spective juror’s mind. Next, the court homed in on ques­ tionnaire answers that raised a red flag signaling possible bias. The court then permitted each side to pose follow-up questions. Finally, after the venire member stepped away, the court entertained and ruled on challenges for cause. In all, the court granted one of the Government’s for- cause challenges and denied four; it granted three of the defendants’ challenges and denied six. The parties agreed to excuse three additional jurors for cause and one for hardship. By the end of the day, the court had qualified 38 pro­ spective jurors, a number sufficient, allowing for peremp­ tory challenges, to empanel 12 jurors and 4 alternates.6 Before the jury was sworn in, Skilling objected to the seating of six jurors. He did not contend that they were in fact biased; instead, he urged that he would have used —————— 6 Selection procedures of similar style and duration took place in three Enron-related criminal cases earlier prosecuted in Houston— United States v. Arthur Andersen LLP, No. 4:02–cr–00121–1 (SD Tex.) (charges against Enron’s outside accountants); United States v. Bayly, No. 4:03–cr–00363 (SD Tex.) (charges against Merrill Lynch and Enron executives for alleged sham sales of Nigerian barges); United States v. Hirko, No. 4:03–cr–00093 (SD Tex.) (fraud and insider-trading charges against five Enron Broadband Services executives). See Brief for United States 9 (In all three cases, the District Court “distributed a jury questionnaire to a pool of several hundred potential jurors; dis­ missed individuals whose responses to the questionnaire demonstrated bias or other disqualifying characteristics; and, after further question­ ing by the court and counsel, selected a jury from the remaining venire in one day.”); Government’s Memorandum of Law in Response to Defendants’ Joint Motion to Transfer Venue in United States v. Skilling et al., No. 4:04–cr–00025 (SD Tex., Dec. 3, 2004), Record, Doc. 231, pp. 21–28 (describing in depth the jury-selection process in the Arthur Andersen and Bayly trials). Cite as: 561 U. S. (2010) 9 Opinion of the Court peremptories to exclude them had he not exhausted his supply by striking several venire members after the court refused to excuse them for cause. Supp. App. 3sa–4sa (Sealed).7 The court overruled this objection. After the jurors took their oath, the District Court told them they could not discuss the case with anyone or follow media accounts of the proceedings. “[E]ach of you,” the court explained, “needs to be absolutely sure that your decisions concerning the facts will be based only on the evidence that you hear and read in this courtroom.” App. 10a. Following a 4-month trial and nearly five days of delib­ eration, the jury found Skilling guilty of 19 counts, includ­ ing the honest-services-fraud conspiracy charge, and not guilty of 9 insider-trading counts. The District Court sentenced Skilling to 292 months’ imprisonment, 3 years’ supervised release, and $45 million in restitution. On appeal, Skilling raised a host of challenges to his convictions, including the fair-trial and honest-services arguments he presses here. Regarding the former, the Fifth Circuit initially determined that the volume and negative tone of media coverage generated by Enron’s collapse created a presumption of juror F.3d 529, 5598 The court also potential —————— 7 Skilling had requested an additional peremptory strike each time the District Court rejected a for-cause objection. The court, which had already granted two extra peremptories, see denied each request. 8 The Fifth Circuit described the media coverage as follows: “Local newspapers ran many personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron. Even the [Houston] Chronicle’s sports page wrote of Skilling’s guilt as a foregone conclusion. Similarly, the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’ These are but a few examples of the Chronicle’s coverage.” (footnote omitted). 10 SKILLING v. UNITED STATES Opinion of the Court stemming from Causey’s guilty plea and from the large number of victims in Houston—from the “[t]housands of Enron employees [who] lost their jobs, and saw their 401(k) accounts wiped out,” to Housto­ nians who suffered spillover economic effects. at 559– 560. The Court of Appeals stated, however, that “the pre­ sumption [of ] is rebuttable,” and it therefore examined the voir dire to determine whether “the District Court empanelled an impartial jury.” (internal quotation marks, italics, and some capitalization omitted). The voir dire was, in the Fifth Circuit’s view, “proper and thorough.” Moreover, the court Skill- ing had challenged only one seated juror—Juror 11—for cause. Although Juror 11 made some troubling comments about corporate greed, the District Court “ [his] demeanor, listened to his answers, and believed he would make the government prove its case.” In sum, the Fifth Circuit found that the Government had overcome the presumption of and that Skilling had not “show[n] that any juror who actually sat was d against him.” The Court of Appeals also rejected Skilling’s claim that his conduct did not indicate any conspiracy to commit honest-services fraud. “[T]he jury was entitled to convict Skilling,” the court stated, “on these elements”: “(1) a material breach of a fiduciary duty (2) that results in a detriment to the employer,” including one occasioned by an employee’s decision to “withhold material information, i.e., information that he had reason to believe would lead a reasonable employer to change its conduct.” The Fifth Circuit did not address Skilling’s argument that the honest-services statute, if not interpreted to exclude his actions, should be invalidated as unconstitutionally vague. Brief of Defendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21. Cite as: 561 U. S. (2010) 11 Opinion of the Court Arguing that the Fifth Circuit erred in its consideration of these claims, Skilling sought relief from this Court. We granted certiorari, 558 U. S. and now affirm in part, vacate in part, and remand for further proceedings.9 We consider first Skilling’s allegation of juror and next, his honest-services argument. II Pointing to “the community passion aroused by Enron’s collapse and the vitriolic media treatment” aimed at him, Skilling argues that his trial “never should have proceeded in Houston.” Brief for Petitioner 20. And even if it had been possible to select impartial jurors in Houston, “[t]he truncated voir dire did almost nothing to weed out s,” he contends, so “[f]ar from rebutting the pre­ sumption of the record below affirmatively confirmed it.” Skilling’s fair-trial claim thus raises two distinct questions. First, did the District Court err by failing to move the trial to a different venue based on a presumption of ? Second, did actual preju­ dice contaminate Skilling’s jury?10 A 1 The Sixth Amendment secures to criminal defendants —————— 9 We also granted certiorari and heard arguments this Term in two other cases raising questions concerning the honest-services statute’s scope. See Black v. United States, No. 08–876; Weyhrauch v. United States, No. 08–1196. Today we vacate and remand those decisions in light of this opinion. Black, post, p. ; Weyhrauch, post, p. 10 Assuming, as the Fifth Circuit found, that a presumption of preju­ dice arose in Houston, the question presented in Skilling’s petition for certiorari casts his actual- argument as an inquiry into when, if ever, that presumption may be rebutted. See Pet. for Cert. i. Al­ though we find a presumption of unwarranted in this case, we consider the actual- issue to be fairly subsumed within the question we agreed to decide. See this Court’s Rule 14.1(a). 12 SKILLING v. UNITED STATES Opinion of the Court the right to trial by an impartial jury. By constitutional design, that trial occurs “in the State where the Crimes have been committed.” Art. III, cl. 3. See also Amdt. 6 (right to trial by “jury of the State and dis­ trict wherein the crime shall have been committed”). The Constitution’s place-of-trial prescriptions, however, do not impede transfer of the proceeding to a different district at the defendant’s request if extraordinary local will prevent a fair trial—a “basic requirement of due process,” In re Murchison,11 2 “The theory of our [trial] system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influ­ —————— 11 Venue transfer in federal court is governed by Federal Rule of Criminal Procedure 21, which instructs that a “court must transfer the proceeding to another district if the court is satisfied that so great a against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.” As the language of the Rule suggests, district-court calls on the necessity of transfer are granted a healthy measure of appellate-court respect. See Federal courts have invoked the Rule to move certain highly charged cases, for example, the prosecution arising from the bombing of the Alfred P. Murrah Federal Office Building in Oklahoma City. See United F. Supp. 1467, They have also exercised discretion to deny venue-transfer requests in cases involving substantial pretrial publicity and community impact, for example, the prosecutions resulting from the 1993 World Trade Center bombing, see United States v. Salameh, No. S5 93 Cr. 0180 (KTD) (SDNY, Sept. 15, 1993); United and the prosecution of John Walker Lindh, referred to in the press as the American Taliban, see United States v. Lindh, 212 F. Supp. 2d 541, 549–551 (ED Va. 2002). Skilling does not argue, distinct from his due process challenge, that the District Court abused its discretion under Rule 21 by declining to move his trial. We there­ fore review the District Court’s venue-transfer decision only for compli­ ance with the Constitution. Cite as: 561 U. S. (2010) 13 Opinion of the Court ence, whether of private talk or public print.” Patterson v. Colorado ex rel. Attorney General of Colo., (1907) (opinion for the Court by Holmes, J.). When does the publicity attending conduct charged as criminal dim prospects that the trier can judge a case, as due proc­ ess requires, impartially, unswayed by outside influence? Because most cases of consequence garner at least some pretrial publicity, courts have considered this question in diverse settings. We begin our discussion by addressing the presumption of from which the Fifth Cir­ cuit’s analysis in Skilling’s case proceeded. The founda­ tion precedent is Wilbert robbed a bank in a small Louisiana town, kidnaped three bank employees, and killed one of them. Police interrogated in jail without counsel present and obtained his confession. Without informing no less seeking his consent, the police filmed the interrogation. On three separate occasions shortly before the trial, a local television station broadcast the film to audiences ranging from 24,000 to 53,000 individuals. moved for a change of venue, arguing that he could not receive a fair trial in the parish where the crime oc­ curred, which had a population of approximately 150,000 people. The trial court denied the motion, and a jury eventually convicted The Supreme Court of Lou­ isiana upheld the conviction. We reversed. “What the people [in the community] saw on their television sets,” we “was in jail, flanked by the sheriff and two state troopers, admitting in detail the commission of the robbery, kidnapping, and murder.” 25. “[T]o the tens of thousands of people who saw and heard it,” we explained, the interrogation “in a very real sense was ’s trial—at which he pleaded guilty.” We therefore “d[id] not hesitate to hold, without pausing to examine a particularized tran­ 14 SKILLING v. UNITED STATES Opinion of the Court script of the voir dire,” that “[t]he kangaroo court proceed­ ings” trailing the televised confession violated due process. –727. We followed ’s lead in two later cases in which media coverage manifestly tainted a criminal prosecution. In extensive publicity before trial swelled into excessive exposure during preliminary court proceedings as reporters and television crews overran the courtroom and “bombard[ed] the community with the sights and sounds of” the pretrial hearing. The media’s overzealous reporting ef­ forts, we “led to considerable disruption” and denied the “judicial serenity and calm to which [Billie Sol Estes] was entitled.” Similarly, in news reporters extensively covered the story of Sam Sheppard, who was accused of bludgeoning his pregnant wife to death. “[B]edlam reigned at the courthouse during the trial and newsmen took over practically the entire courtroom,” thrusting jurors “into the role of celebrities.” Pretrial media coverage, which we char­ acterized as “months [of] virulent publicity about Sheppard and the murder,” did not alone deny due proc­ ess, we But Sheppard’s case involved more than heated reporting pretrial: We upset the murder conviction because a “carnival atmosphere” pervaded the trial, In each of these cases, we overturned a “conviction obtained in a trial atmosphere that [was] utterly corrupted by press coverage”; our decisions, however, “cannot be made to stand for the proposition that juror exposure to news accounts of the crime alone presumptively deprives the defendant of due process.”12 See also, e.g., Patton —————— 12 Murphy involved the robbery prosecution of the notorious Jack Cite as: 561 U. S. (2010) 15 Opinion of the Court v.13 Prominence does not necessarily produce and juror impartiality, we have reiterated, does not require ignorance. v. Dowd, (Jurors are not required to be “totally ignorant of the facts and issues involved”; “scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”); v. United States, 98 U.S. 145, –156 (1879) and which “entirely lack[ed] the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob.” 421 U.S., 99. Voir dire revealed no great hostility toward Murphy; “[s]ome of the jurors had a vague recollection of the robbery with which [he] was charged and each had some knowledge of [his] past crimes, but none betrayed any belief in the relevance of [his] past to the present case.” (footnote omitted). 13 In the media reported on Jon ’s confession to a brutal murder and his prior conviction for the crime, which had been reversed due to a violation of During voir dire, 77% of prospective jurors acknowledged they would carry an opinion into the jury box, and 8 of the 14 seated jurors and alternates admitted they had formed an opinion as to ’s guilt. 467 U.S., at 1029–1030. Nevertheless, we rejected ’s presumption-of­ claim. The adverse publicity and community outrage, we were at their height prior to ’s first trial, four years before the second prosecution; time had helped “sooth[e] and eras[e]” commu­ nity 16 SKILLING v. UNITED STATES Opinion of the Court impression or some opinion in respect to its merits.”). A presumption of our decisions indicate, attends only the extreme case. 3 Relying on Estes, and Sheppard, Skilling as­ serts that we need not pause to examine the screening questionnaires or the voir dire before declaring his jury’s verdict void. We are not persuaded. Important differ­ ences separate Skilling’s prosecution from those in which we have presumed juror14 First, we have emphasized in prior decisions the size and characteristics of the community in which the crime occurred. In for example, we that the mur­ der was committed in a parish of only 150,000 residents. Houston, in contrast, is the fourth most populous city in the Nation: At the time of Skilling’s trial, more than 4.5 million individuals eligible for jury duty resided in the Houston area. App. 7a. Given this large, diverse pool of potential jurors, the suggestion that 12 impartial indi­ viduals could not be empaneled is hard to sustain. See (potential for mitigated by the size of the “metropolitan Washington [D. C.] statistical area, which has a popula­ tion of over 3 million, and in which, unfortunately, hun­ dreds of murders are committed each year”); Gentile v. State Bar of Nev., (plurality opinion) (reduced likelihood of where venire was drawn from a pool of over 600,000 individuals).15 —————— 14 Skilling’s reliance on Estes and Sheppard is particularly misplaced; those cases involved media interference with courtroom proceedings during trial. See Skilling does not assert that news coverage reached and influenced his jury after it was empaneled. 15 According to a survey commissioned by Skilling in conjunction with his first motion for a venue change, only 12.3% of Houstonians named him when asked to list Enron executives they believed guilty of crimes. Cite as: 561 U. S. (2010) 17 Opinion of the Court Second, although news stories about Skilling were not kind, they contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight. ’s dramatically staged admission of guilt, for in­ stance, was likely imprinted indelibly in the mind of any­ one who watched it. 72 (plurality opinion) (“[T]he defendant’s own con­ fession [is] probably the most probative and damaging evidence that can be admitted against him.” (internal quotation marks omitted)). Pretrial publicity about Skill­ ing was less memorable and prejudicial. No evidence of the smoking-gun variety invited prejudgment of his culpa­ bility. See United 251– 252, n. 11 (“A jury may have difficulty in disbelieving or forgetting a defendant’s opinion of his own guilt but have no difficulty in rejecting the opinions of others because they may not be well-founded.”). Third, unlike cases in which trial swiftly followed a widely reported crime, e.g., 373 U.S., 24, over four years elapsed between Enron’s bankruptcy and Skill­ ing’s trial. Although reporters covered Enron-related news throughout this period, the decibel level of media attention diminished somewhat in the years following Enron’s collapse. See App. 700a; 85a; 467 U.S., at 10, 1034. Finally, and of prime significance, Skilling’s jury acquit­ ted him of nine insider-trading counts. Similarly, earlier instituted Enron-related prosecutions yielded no over­ —————— App. 375a–376a. In response to the follow-up question “[w]hat words come to mind when you hear the name Jeff Skilling?”, two-thirds of respondents failed to say a single negative word, 6a: 43% either had never heard of Skilling or stated that nothing came to mind when they heard his name, and another 23% knew Skilling’s name was associated with Enron but reported no opinion about him, Record 10– 11; see App. 417a–492a. 18 SKILLING v. UNITED STATES Opinion of the Court whelming victory for the Government.16 In Estes, and Sheppard, in marked contrast, the jury’s verdict did not undermine in any way the supposition of juror bias. It would be odd for an appellate court to presume in a case in which jurors’ actions run counter to that pre­ sumption. See, e.g., United States v. Arzola-Amaya, 867 F.2d 1504, 1514 (“The jury’s ability to discern a failure of proof of guilt of some of the alleged crimes indicates a fair minded consideration of the issues and reinforces our belief and conclusion that the media cover­ age did not lead to the deprivation of [the] right to an impartial trial.”). 4 Skilling’s trial, in short, shares little in common with those in which we approved a presumption of juror preju­ dice. The Fifth Circuit reached the opposite conclusion based primarily on the magnitude and negative tone of media attention directed at Enron. But “pretrial public­ ity—even pervasive, adverse publicity—does not inevita­ bly lead to an unfair trial.” Nebraska Press In this case, as just news stories about Enron did not present the kind of vivid, unforgettable information we have recognized as particu­ larly likely to produce and Houston’s size and diversity diluted the media’s impact.17 —————— 16 As the United States summarizes, “[i]n Hirko, the jury deliberated for several days and did not convict any Enron defendant; in Bayly, which was routinely described as ‘the first Enron criminal trial,’ the jury convicted five defendants, but acquitted a former Enron execu­ tive. At the sentencing phase of Bayly, the jury found a loss amount of slightly over $13 million, even though the government had argued that the true loss was $40 million.” Brief for United States 9–10 (cita­ tion omitted). 17 The Fifth Circuit, moreover, did not separate media attention aimed at Skilling from that devoted to Enron’s downfall more generally. Data submitted by Skilling in support of his first motion for a venue Cite as: 561 U. S. (2010) 19 Opinion of the Court Nor did Enron’s “sheer number of victims,” F.3d, at 560, trigger a presumption of Although the widespread community impact necessitated careful identi­ fication and inspection of prospective jurors’ connections to Enron, the extensive screening questionnaire and follow­ up voir dire were well suited to that task. And hindsight shows the efficacy of these devices; as we discuss infra, at 24, jurors’ links to Enron were either nonexistent or attenuated. Finally, although Causey’s “well-publicized decision to plead guilty” shortly before trial created a danger of juror the District Court took appro­ priate steps to reduce that risk. The court delayed the proceedings by two weeks, lessening the immediacy of that development. And during voir dire, the court asked about prospective jurors’ exposure to recent publicity, including news regarding Causey. Only two venire members re­ called the plea; neither mentioned Causey by name, and neither ultimately served on Skilling’s jury. App. 888a, 993a. Although publicity about a codefendant’s guilty plea calls for inquiry to guard against actual it does not ordinarily—and, we are satisfied, it did not here— warrant an automatic presumption of Persuaded that no presumption arose,18 we conclude that the District Court, in declining to order a venue change, did not exceed constitutional limitations.19 —————— transfer suggested that a slim percentage of Enron-related stories specifically named him. App. 572a. “[W]hen publicity is about the event, rather than directed at individual defendants, this may lessen any prejudicial impact.” United 18 The parties disagree about whether a presumption of can be rebutted, and, if it can, what standard of proof governs that issue. Compare Brief for Petitioner 25–35 with Brief for United States 24–, 35–36. Because we hold that no presumption arose, we need not, and do not, reach these questions. 19 The dissent acknowledges that “the prospect of seating an unbiased 20 SKILLING v. UNITED STATES Opinion of the Court B We next consider whether actual infected Skilling’s jury. Voir dire, Skilling asserts, did not ade­ quately detect and defuse juror bias. “[T]he record affirmatively confirm[s]” he maintains, because several seated jurors “prejudged his guilt.” Brief for Peti­ tioner 21. We disagree with Skilling’s characterization of the voir dire and the jurors selected through it. 1 No hard-and-fast formula dictates the necessary depth or breadth of voir dire. See United States v. Wood, 299 U.S. 123, 145–146 (1936) (“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Con­ stitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.”). Jury selection, we have repeatedly emphasized, is “particularly within the province of the trial judge.” (internal quotation marks omitted); see, e.g., Mu’, ; 467 U.S., at 1038; Rosales-Lopez v. United States, 451 U.S. 182, 188–189 (1981) (plurality opinion); When pretrial publicity is at issue, “primary reliance on the judgment of the trial court makes [especially] good sense” because the judge “sits in the locale where the publicity is said to have had its effect” and may base her evaluation on her “own perception of the depth and extent of news stories that might influence a juror.” Mu’, 500 U.S., at Appellate courts making after-the-fact —————— jury in Houston was not so remote as to compel the conclusion that the District Court acted unconstitutionally in denying Skilling’s motion to change ” Post, at 20. The dissent’s conclusion that Skilling did not receive a fair trial accordingly turns on its perception of the ade­ quacy of the jury-selection process. Cite as: 561 U. S. (2010) 21 Opinion of the Court assessments of the media’s impact on jurors should be mindful that their judgments lack the on-the-spot com­ prehension of the situation possessed by trial judges. Reviewing courts are properly resistant to second­ guessing the trial judge’s estimation of a juror’s impartial­ ity, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record— among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty. See –157. In contrast to the cold transcript received by the appellate court, the in­ the-moment voir dire affords the trial court a more inti­ mate and immediate basis for assessing a venire member’s fitness for jury service. We consider the adequacy of jury selection in Skilling’s case, therefore, attentive to the respect due to district-court determinations of juror im­ partiality and of the measures necessary to ensure that impartiality.20 —————— 20 The dissent recognizes “the ‘wide discretion’ owed to trial courts when it comes to jury-related issues,” post, at 22 ), but its analysis of the District Court’s voir dire sometimes fails to demonstrate that awareness. For example, the dissent faults the District Court for not questioning prospective jurors regarding their “knowledge of or feelings about” Causey’s guilty plea. Post, at 28. But the court could reasonably decline to ask direct questions involving Causey’s plea to avoid tipping off until-that-moment uninformed venire members that the plea had occurred. App. 822a (counsel for Skilling urged District Court to find a way to question venire members about Causey “without mention­ ing anything”). Nothing inhibited defense counsel from inquiring about venire members’ knowledge of the plea; indeed, counsel posed such a question, at 993a; post, at 28, n. 14 (acknowledging that counsel “squeeze[d] in” an inquiry whether a venire member had “read about any guilty pleas in this case over the last month or two” (internal quotation marks omitted)). From this Court’s lofty and “panoramic” vantage point, post, at 22, lines of voir dire inquiry that “might be helpful in assessing whether a juror is impartial” are not hard to conceive. Mu’, “To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, 22 SKILLING v. UNITED STATES Opinion of the Court 2 Skilling deems the voir dire insufficient because, he argues, jury selection lasted “just five hours,” “[m]ost of the court’s questions were conclusory[,] high-level, and failed adequately to probe jurors’ true feelings,” and the court “consistently took prospective jurors at their word once they claimed they could be fair, no matter what other indications of bias were present.” Brief for Petitioner 10– 11 (emphasis deleted). Our review of the record, however, yields a different appraisal.21 As at 4–6, and n. 4, the District Court initially screened venire members by eliciting their re­ sponses to a comprehensive questionnaire drafted in large part by Skilling. That survey helped to identify prospec­ tive jurors excusable for cause and served as a spring­ board for further questions put to remaining members of the array. Voir dire thus was, in the court’s words, the “culmination of a lengthy process.” App. 841a; see F.3d, n. 51 (“We consider the questionnaire in —————— the trial court’s failure to ask these questions must render the defen­ dant’s trial fundamentally unfair.” at 425–4. According appro­ priate deference to the District Court, we cannot characterize jury­ selection in this case as fundamentally unfair. (same selection process was used in other Enron-related prosecutions). 21 In addition to focusing on the adequacy of voir dire, our decisions have also “take[n] into account other measures [that] were used to mitigate the adverse effects of publicity.” Nebraska Press Assn. v. Stuart, We have for example, the prophylactic effect of “emphatic and clear instructions on the sworn duty of each juror to decide the issues only on evidence presented in open court.” Here, the District Court’s instructions were unequivocal; the jurors, the court emphasized, were duty bound “to reach a fair and impartial verdict in this case based solely on the evidence [they] hear[d] and read in th[e] courtroom.” App. 10a. Peremptory challenges, too, “provid[e] protection against [],” United States ex rel. ; the District Court, as earlier exercised its discretion to grant the defendants two extra peremptories, App. 1020a; see Cite as: 561 U. S. (2010) 23 Opinion of the Court assessing the quality of voir dire as a whole.”).22 In other Enron-related prosecutions, we note, District Courts, after inspecting venire members’ responses to questionnaires, completed the jury-selection process within one day. See23 The District Court conducted voir dire, moreover, aware of the greater-than-normal need, due to pretrial publicity, to ensure against jury bias. At Skilling’s urging, the court examined each prospective juror individually, thus pre­ venting the spread of any prejudicial information to other venire members. See Mu’, To en­ courage candor, the court repeatedly admonished that there were “no right and wrong answers to th[e] ques­ tions.” E.g., App. 843a. The court denied Skilling’s re­ quest for attorney-led voir dire because, in its experience, potential jurors were “more forthcoming” when the court, rather than counsel, asked the question. Record 11805. The parties, however, were accorded an opportunity to ask follow-up questions of every prospective juror brought to —————— 22 The dissent’s analysis undervalues the 77-item questionnaire, a part of the selection process difficult to portray as “cursory,” post, at 30, or “anemic,” post, at 35. Notably, the “open-ended questions about [prospective jurors’] impressions of Enron or Skilling” that the dissent contends should have been asked, post, at 30, were asked—on the questionnaire, see at 5–6, n. 4. Moreover, the District Court gave Skilling’s counsel relatively free rein to ask venire members about their responses on the questionnaire. See, e.g., App. 869a–870a; at 878a, 911a, 953a. The questionnaire plus follow-up opportunity to interrogate potential jurors surely gave Skilling’s counsel “clear ave­ nue[s] for permissible inquiry.” But see post, at 31, n. 17. See also App. 967a (counsel for Skilling) (“Judge, for the record, if I don’t ask any questions, it’s because the Court and other counsel have covered it.”). 23 One of the earlier prosecutions targeted the “Big Five” public ac­ counting firm Arthur Andersen. See Among media readers and auditors, the name and reputation of Arthur Andersen likely sparked no less attention than the name and reputation of Jeffrey Skilling. at 16–17, n. 15. 24 SKILLING v. UNITED STATES Opinion of the Court the bench for colloquy. Skilling’s counsel declined to ask anything of more than half of the venire members ques­ tioned individually, including eight eventually selected for the jury, because, he explained, “the Court and other counsel have covered” everything he wanted to know. App. 967a. Inspection of the questionnaires and voir dire of the individuals who actually served as jurors satisfies us that, notwithstanding the flaws Skilling lists, the selection process successfully secured jurors who were largely un­ touched by Enron’s collapse.24 Eleven of the seated jurors and alternates reported no connection at all to Enron, while all other jurors reported at most an insubstantial link. See, e.g., Supp. App. sa (Juror 63) (“I once met a guy who worked for Enron. I cannot remember his name.”).25 As for pretrial publicity, 14 jurors and alter­ nates specifically stated that they had paid scant attention to Enron-related news. See, e.g., App. 859a–860a (Juror —————— 24 In considering whether Skilling was tried before an impartial jury, the dissent relies extensively on venire members not selected for that jury. See, e.g., post, at 6, n. 4 (quoting the questionnaires of ten venire members; all were excused for cause before voir dire commenced, see Record 11891); post, n. 6 (quoting the questionnaires of 15 venire members; none sat on Skilling’s jury); post, at 10–11, n. 7 (quoting voir dire testimony of six venire members; none sat on Skilling’s jury); post, at 28–34 (reporting at length voir dire testimony of Venire Members 17, 29, 61, 74, 75, and ; none sat on Skilling’s jury). Statements by nonjurors do not themselves call into question the adequacy of the jury­ selection process; elimination of these venire members is indeed one indicator that the process fulfilled its function. Critically, as discussed infra, at 24–, the seated jurors showed little knowledge of or interest in, and were personally unaffected by, Enron’s downfall. 25 See also Supp. App. 11sa (Juror 10) (“knew some casual co-workers that owned Enron stock”); at sa (Juror 11) (“work[s] with some­ one who worked at Enron”); at 117sa; App. 940a (Juror 64) (two acquaintances lost money due to Enron’s collapse); Supp. App. 236sa (Juror 116) (work colleague lost money as a result of Enron’s bankruptcy). Cite as: 561 U. S. (2010) 25 Opinion of the Court 13) (would “[b]asically” start out knowing nothing about the case because “I just didn’t follow [it] a whole lot”); at 969a (Juror 78) (“[Enron] wasn’t anything that I was interested in reading [about] in detail. I don’t really know much about it.”). The remaining two jurors indicated that nothing in the news influenced their opin­ ions about Skilling.27 The questionnaires confirmed that, whatever commu­ nity existed in Houston generally, Skilling’s jurors were not under its sway.28 Although many ex­ —————— See also App. 850a (Juror 10) (“I haven’t followed [Enron-related news] in detail or to any extreme at all.”); at 856a (Juror 11) (did not “get into the details of [the Enron case]” and “just kind of tune[d] [it] out”); at 873a (Juror 20) (“I was out of [the] state when [Enron collapsed], and then personal circumstances kept me from paying much attention.”); at 892a (Juror 38) (recalled “nothing in particular” about media coverage); at 913a (Juror 50) (“I would hear it on the news and just let it filter in and out.”); at 935a (Juror 63) (“I don’t really pay attention.”); at 940a–a (Juror 64) (had “[n]ot really” been keeping up with and did not recall any news about Enron); at 971a (Juror 84) (had not read “anything at all about Enron” because he did not “want to read that stuff” ); at 983a (Juror 90) (“seldom” read the Houston Chronicle and did not watch news programs); at 995a–996a (Juror 99) (did not read newspapers or watch the news; “I don’t know the details on what [this case] is or what made it what it is”); at 0a (Juror 113) (“never really paid that much attention [to] it”); at 3a (Juror 116) (had “rea[d] a number of different articles,” but “since it hasn’t affected me personally,” could not “specifically recall” any of them). 27 at 944a (Juror 67) (had not read the Houston Chronicle in the three months preceding the trial and volunteered: “I don’t form an opinion based on what I hear on the news”); at 974a–975a (Juror 87) (had not “formed any opinions” about Skilling’s guilt from news stories). 28 As the D. C. Circuit reviewing the impact on jurors of media coverage of the Watergate scandal, “[t]his may come as a sur­ prise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.” United See also In re Charlotte Observer, SKILLING v. UNITED STATES Opinion of the Court pressed sympathy for victims of Enron’s bankruptcy and speculated that greed contributed to the corporation’s collapse, these sentiments did not translate into animus toward Skilling. When asked whether they “ha[d] an opinion about Jeffrey Skilling,” none of the seated jurors and alternates checked the “yes” box.29 And in response to the question whether “any opinion [they] may have formed regarding Enron or [Skilling] [would] pre­ vent” their impartial consideration of the evidence at trial, every juror—despite options to mark “yes” or “unsure”— instead checked “no.” The District Court, Skilling asserts, should not have “accept[ed] at face value jurors’ promises of fairness.” Brief for Petitioner 37. In v. Dowd, 366 U.S., at 727–728, Skilling points out, we found actual despite jurors’ assurances that they could be impartial. Brief for Petitioner JUSTICE SOTOMAYOR, in turn, repeatedly relies on which she regards as closely analogous to this case. See post, at 23 (opinion concurring in part and dissenting in part) (hereinafter dissent). See also, e.g., post, at 15–16, 33, 35, 39–40. We disagree with that characterization of The facts of are worlds apart from those presented —————— (“[R]emarkably in the eyes of many,” “[c]ases such as those involving the Watergate defendants, the Abscam defendants, and John DeLorean, all characterized by massive pretrial media reportage and commentary, nevertheless proceeded to trial with juries which were satisfactorily disclosed to have been unaffected (indeed, in some in­ stances blissfully unaware of or untouched) by that publicity.”); Brief for ABC, Inc., et al. as Amici Curiae 25–31 (describing other examples). 29 One juror did not check any box, explaining that she lived in an­ other State when Enron went bankrupt and therefore “was not fully aware of all the facts regarding Enron’s fall [and] the media coverage.” Supp. App. sa (Juror 20). Two other jurors, Juror 10 and Juror 63, indicated in answer to a different question that they had an opinion about Skilling’s guilt, but voir dire established they could be impartial. See infra, at –34, and n. 34. Cite as: 561 U. S. (2010) 27 Opinion of the Court here. Leslie stood accused of a brutal murder and robbery spree in a small rural community. 366 U.S., at 719. In the months before ’s trial, “a barrage” of publicity was “unleashed against him,” including reports of his confessions to the slayings and robberies. at 725–7. This Court’s description of the media coverage in reveals why the dissent’s “best case” is not an apt comparison: “[S]tories revealed the details of [’s] background, including a reference to crimes committed when a ju­ venile, his convictions for arson almost 20 years pre­ viously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but [he] refused to confess. Finally, they announced [’s] confession to the six murders and the fact of his indictment for four of them in Indiana. They reported [’s] offer to plead guilty if promised a 99-year sentence, but also the de­ termination, on the other hand, of the prosecutor to secure the death penalty, and that [] had con­ fessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity ). One story dramatically relayed the promise of a sheriff to devote his life to securing [’s] execution Another characterized [] as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories [] was described as the ‘confessed slayer of six,’ a parole violator and fraudulent-check artist. [’s] court-appointed counsel was quoted as having received ‘much criticism over being ’s counsel’ and it was pointed out, by 28 SKILLING v. UNITED STATES Opinion of the Court way of excusing the attorney, that he would be subject to disbarment should he refuse to represent On the day before the trial the newspapers carried the story that had orally admitted [to] the murder of [one victim] as well as ‘the robbery-murder of [a sec­ ond individual]; the murder of [a third individual], and the slaughter of three members of [a different family].’ ” 25–7. “[N]ewspapers in which the[se] stories appeared were delivered regularly to 95% of the dwellings in” the county where the trial occurred, which had a population of only 30,000; “radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents.” 25. Reviewing ’s fair-trial claim, this Court that “the pattern of deep and bitter ” in the commu­ nity “was clearly reflected in the sum total of the voir dire”: “370 prospective jurors or almost 90% of those exam­ ined on the point entertained some opinion as to guilt,” and “[8] out of the 12 [jurors] thought [] was guilty.” 27 Although these jurors declared they could be impartial, we held that, “[w]ith his life at stake, it is not requiring too much that [] be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.” at 728. In this case, as news stories about Enron contained nothing resembling the horrifying infor­ mation rife in reports about ’s rampage of robberies and murders. Of key importance, Houston shares little in common with the rural community in which ’s trial proceeded, and circulation figures for Houston media sources were far lower than the 95% saturation level Cite as: 561 U. S. (2010) 29 Opinion of the Court recorded in see App. to Brief for United States 15a (“The Houston Chronicle reaches less than one-third of occupied households in Houston.” (internal quotation marks omitted)). Skilling’s seated jurors, moreover, exhib­ ited nothing like the display of bias shown in See at 24– (noting, inter alia, that none of Skilling’s jurors answered “yes” when asked if they “ha[d] an opinion about Skilling”). See also post, at 19 (dissent) (distin­ guishing Mu’ from on similar bases: the “offense occurred in [a large] metropolitan area,” media “cover­ age was not as pervasive as in and did not contain the same sort of damaging information,” and “the seated jurors uniformly disclaimed having ever formed an opinion about the case” ). In light of these large differences, the District Court had far less reason than did the trial court in to discredit jurors’ promises of fairness. The District Court, moreover, did not simply take venire members who proclaimed their impartiality at their word.30 As all of Skilling’s jurors had already af­ firmed on their questionnaires that they would have no trouble basing a verdict only on the evidence at trial. Nevertheless, the court followed up with each individually to uncover concealed bias. This face-to-face opportunity to gauge demeanor and credibility, coupled with information from the questionnaires regarding jurors’ backgrounds, opinions, and sources of news, gave the court a sturdy foundation to assess fitness for jury service. See F.3d, (The District Court made “thorough” credibility determinations that “requir[ed] more than just the [venire —————— 30 The court viewed with skepticism, for example, Venire Member 104’s promises that she could “abide by law,” follow the court’s instruc­ tions, and find Skilling not guilty if the Government did not prove its case, App. 1004a; “I have to gauge demeanor, all the answers she gave me,” the court stated, and “[s]he persuaded me that she could not be fair and impartial, so she’s excused,” at 1006a. 30 SKILLING v. UNITED STATES Opinion of the Court members’] statements that [they] could be fair.”). The jury’s not-guilty verdict on nine insider-trading counts after nearly five days of deliberation, meanwhile, suggests the court’s assessments were accurate. See United States v. Haldeman,31 Skilling, we conclude, failed to show that his voir dire fell short of constitutional requirements. —————— 31 The dissent asserts that “the Government placed relatively little emphasis on [these] insider trading counts during its closing argu­ ment.” Post, at 39. As the record shows, however, counsel described in detail the evidence supporting Count 50, one of the insider-trading counts on which the jury returned a not-guilty verdict. See Record 37008–37010. Skilling, Government counsel asserted, sold “half of his stock” based on “material inside information” and then lied in testi­ mony before the Securities and Exchange Commission (SEC) by claim­ ing the “only reason [he] sold Enron stock was because of [the] Septem­ ber 11th [terrorist attacks].” (internal quotation marks omitted). As counsel summarized: “Mr. Skilling used our nation’s tragedy to cover his tracks. I’d suggest the reason he was lying is because he didn’t want [the SEC] to know that he had done it before. [T]hat’s Count 50. That’s proof beyond a reasonable doubt.” at 37010. Regarding the remaining insider-trading counts, counsel reminded jurors they had heard similar evidence of Skilling’s other sales, and urged them to “conclude, based on the evidence,” that “Skill­ ing had information that he used to sell his stock” at the “key periods in time.” Skilling emphasizes that voir dire did not weed out every juror who suffered from Enron’s collapse because the District Court failed to grant his for-cause challenge to Venire Member 29, whose retirement fund lost $50,000 due to ripple effects from the decline in the value of Enron stock. App. 880a. Critically, however, Venire Member 29 did not sit on Skilling’s jury: Instead, Skilling struck her using a peremptory chal­ lenge. “[I]f [a] defendant elects to cure [a trial judge’s erroneous for­ cause ruling] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat,” we have held, “he has not been deprived of any constitutional right.” United States v. Martinez-Salazar, Indeed, the “use [of] a peremptory challenge to effect an instantaneous cure of the error” exemplifies “a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury.” Cite as: 561 U. S. (2010) 31 Opinion of the Court 3 Skilling also singles out several jurors in particular and contends they were openly biased. See United States v. Martinez-Salazar, (“[T]he seat­ ing of any juror who should have been dismissed for cause require[s] reversal.”). In reviewing claims of this type, the deference due to district courts is at its pinnacle: “A trial court’s findings of juror impartiality may be over­ turned only for manifest error.” Mu’, Skilling, moreover, unsuccessfully challenged only one of the seated jurors for cause, “strong evidence that he was convinced the [other] jurors were not biased and had not formed any opinions as to his guilt.” 557–558 (19). With these considerations in mind, we turn to Skilling’s specific allegations of juror partiality. Skilling contends that Juror 11—the only seated juror he challenged for cause—“expressed the most obvious bias.” Brief for Petitioner 35. See also post, at 36 (dis­ sent). Juror 11 stated that “greed on Enron’s part” trig­ gered the company’s bankruptcy and that corporate execu­ tives, driven by avarice, “walk a line that stretches sometimes the legality of something.” App. 854a–855a. But, as the Fifth Circuit accurately summarized, Juror 11 “had ‘no idea’ whether Skilling had ‘crossed that line,’ and he ‘didn’t say that’ every CEO is probably a crook. He also asserted that he could be fair and require the government to prove its case, that he did not believe everything he read in the paper, that he did not ‘get into the details’ of the Enron coverage, that he did not watch television, and that Enron was ‘old news.’ ” F.3d, at 563–564. Despite his criticism of greed, Juror 11 remarked that Skilling “earned [his] salar[y],” App. 857a, and said he would have “no problem” telling his co-worker, who had SKILLING v. UNITED STATES Opinion of the Court lost 401(k) funds due to Enron’s collapse, that the jury voted to acquit, if that scenario came to pass, at 854a. The District Court, noting that it had “looked [Juror 11] in the eye and heard all his [answers],” found his asser­ tions of impartiality credible. at 858a; n. 30. We agree with the Court of Appeals that “[t]he express finding that Juror 11 was fair is not reversible error.” F.3d,33 Skilling also objected at trial to the seating of six spe­ cific jurors whom, he said, he would have excluded had he not already exhausted his peremptory challenges. See at 8–9. Juror 20, he observes, “said she was ‘angry’ about Enron’s collapse and that she, too, had been ‘forced to forfeit [her] own 401(k) funds to survive layoffs.’ ” Reply Brief 13. But Juror 20 made clear during voir dire that she did not “personally blame” Skilling for the loss of her retirement account. App. 875a. Having not “pa[id] much attention” to Enron-related news, she “quite honestly” did not “have enough information to know” whether Skilling was probably guilty, at 873a, and she “th[ought] [she] could be” fair and impartial, at 875a. In light of these answers, the District Court did not commit manifest error in finding Juror 20 fit for jury service. The same is true of Juror 63, who, Skilling points out, wrote on her questionnaire “that [Skilling] ‘probably knew [he] w[as] breaking the law.’ ” Reply Brief 13. During voir dire, however, Juror 63 insisted that she did not “really have an opinion [about Skilling’s guilt] either way,” App. 936a; she did not “know what [she] was thinking” when she completed the questionnaire, but she “absolutely” presumed Skilling innocent and confirmed her under­ standing that the Government would “have to prove” his —————— 33 Skilling’s trial counsel and jury consultants apparently did not regard Juror 11 as so “obvious[ly] bias[ed],” Brief for Petitioner 35, as to warrant exercise of a peremptory challenge. Cite as: 561 U. S. (2010) 33 Opinion of the Court guilt, at 937a. In response to follow-up questions from Skilling’s counsel, she again stated she would not presume that Skilling violated any laws and could “[a]bsolutely” give her word that she could be fair. at 937a–938a. “Jurors,” we have recognized, “cannot be expected invaria­ bly to express themselves carefully or even consistently.” See also (“It is here that the federal [appellate] court’s deference must operate, for while the cold record arouses some concern, only the trial judge could tell which of these answers was said with the greatest comprehension and certainty.”). From where we sit, we cannot conclude that Juror 63 was biased. The four remaining jurors Skilling said he would have excluded with extra peremptory strikes exhibited no sign of we can discern. See App. 891a–892a (Juror 38) (remembered no media coverage about Enron and said nothing in her experience would prevent her from being fair and impartial); Supp. App. 131sa–133sa, sa (Juror 67) (had no connection to Enron and no anger about its collapse); App. 969a (Juror 78) (did not “know much about” Enron); Supp. App. 165sa, App. 971a (Juror 84) (had not heard or read anything about Enron and said she did not “know enough to answer” the question whether she was angry about the company’s demise). Skilling’s counsel declined to ask follow-up questions of any of these jurors and, indeed, told Juror 84 he had nothing to ask because she “gave all the right answers.” at 972a. Whatever Skilling’s reasons for wanting to strike these four indi­ viduals from his jury, he cannot credibly assert they dis­ played a disqualifying bias.34 —————— 34 Although Skilling raised no objection to Juror 10 and Juror 87 at trial, his briefs in this Court impugn their impartiality. Brief for Petitioner 14–15; Reply Brief 13. Even if we allowed these tardy pleas, the voir dire testimony of the two jurors gives sufficient assurance that they were unbiased. See, e.g., App. 850a–853a (Juror 10) (did not prejudge Skilling’s guilt, indicated he could follow the court’s instruc­ 34 SKILLING v. UNITED STATES Opinion of the Court In sum, Skilling failed to establish that a presumption of arose or that actual bias infected the jury that tried him. Jurors, the trial court correctly comprehended, need not enter the box with empty heads in order to de­ termine the facts impartially. “It is sufficient if the ju­ ror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court.” 366 U.S., 23. Taking account of the full record, rather than incomplete exchanges selectively culled from it, we find no cause to upset the lower courts’ judgment that Skilling’s jury met that measure. We therefore affirm the Fifth Circuit’s ruling that Skilling received a fair trial.35 III We next consider whether Skilling’s conspiracy convic­ tion was premised on an improper theory of honest­ services wire fraud. The honest-services statute, Skilling maintains, is unconstitutionally vague. Alterna­ tively, he contends that his conduct does not fall within the statute’s compass. A To place Skilling’s constitutional challenge in context, we first review the origin and subsequent application of —————— tions and make the Government prove its case, stated he could be fair to Skilling, and said he would “judge on the facts”); at 974a (Juror 87) (had “not formed an opinion” on whether Skilling was guilty and affirmed she could adhere to the presumption of innocence). 35 Our decisions have rightly set a high bar for allegations of juror due to pretrial publicity. See, e.g., Mu’, ; Patton v. ; Murphy v. Florida, 421 U.S. 794 News coverage of civil and criminal trials of public interest conveys to society at large how our justice system operates. And it is a premise of that system that jurors will set aside their preconceptions when they enter the courtroom and decide cases based on the evidence presented. Trial judges generally take care so to instruct jurors, and the District Court did just that in this case. App. 10a. Cite as: 561 U. S. (2010) 35 Opinion of the Court the honest-services doctrine. 1 Enacted in 1872, the original mail-fraud provision, the predecessor of the modern-day mail- and wire-fraud laws, proscribed, without further elaboration, use of the mails to advance “any scheme or artifice to defraud.” See McNally v. United States, In 1909, Con­ gress amended the statute to prohibit, as it does today, “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” (emphasis added); see at 357–358. Emphasizing Congress’ disjunctive phras­ ing, the Courts of Appeals, one after the other, interpreted the term “scheme or artifice to defraud” to include depri­ vations not only of money or property, but also of intangi­ ble rights. In an opinion credited with first presenting the intangi­ ble-rights theory, (1), the Fifth Circuit reviewed the mail-fraud prosecu­ tion of a public official who allegedly accepted bribes from entrepreneurs in exchange for urging city action beneficial to the bribe payers. “It is not true that because the [city] was to make and did make a saving by the operations there could not have been an intent to defraud,” the Court of Appeals maintained. “A scheme to get a public contract on more favorable terms than would likely be got otherwise by bribing a public official,” the court “would not only be a plan to commit the crime of bribery, but would also be a scheme to defraud the public.” The Fifth Circuit’s opinion in stimulated the development of an “honest-services” doctrine. Unlike fraud in which the victim’s loss of money or property supplied the defendant’s gain, with one the mirror image of the other, see, e.g., United 36 SKILLING v. UNITED STATES Opinion of the Court the honest-services theory targeted cor­ ruption that lacked similar symmetry. While the offender profited, the betrayed party suffered no deprivation of money or property; instead, a third party, who had not been deceived, provided the enrichment. For example, if a city mayor (the offender) accepted a bribe from a third party in exchange for awarding that party a city contract, yet the contract terms were the same as any that could have been negotiated at arm’s length, the city (the be­ trayed party) would suffer no tangible loss. McNally, Even if the scheme occasioned a money or property gain for the betrayed party, courts reasoned, actionable harm lay in the denial of that party’s right to the offender’s “honest services.” See, e.g., United States v. Dixon, “Most often these cases involved bribery of public officials,” United but courts also recognized private-sector honest-services fraud. In perhaps the earliest application of the theory to private actors, a District Court, reviewing a bribery scheme, explained: “When one tampers with [the employer-employee] re­ lationship for the purpose of causing the employee to breach his duty [to his employer,] he in effect is de­ frauding the employer of a lawful right. The actual deception that is practised is in the continued repre­ sentation of the employee to the employer that he is honest and loyal to the employer’s interests.” United Over time, “[a]n increasing number of courts” recognized that “a recreant employee”—public or private—“c[ould] be prosecuted under [the mail-fraud statute] if he breache[d] his allegiance to his employer by accepting bribes or kick­ backs in the course of his employment,” United States v. Cite as: 561 U. S. (2010) 37 Opinion of the Court McNeive, 536 F.2d 1, ; by 1982, all Courts of Appeals had embraced the honest-services the­ ory of fraud, Hurson, Limiting the Federal Mail Fraud Statute—A Legislative Approach, 20 Am. Crim. L. Rev. 423, 456 (1983).36 2 In this Court, in stopped the development of the intangible-rights doctrine in its tracks. McNally involved a state officer who, in selecting Kentucky’s insurance agent, arranged to procure a share of the agent’s commissions via kickbacks paid to companies the official partially controlled. 483 U.S., at 360. The prosecutor did not charge that, “in the absence of the alleged scheme[,] the Commonwealth would have paid a lower premium or secured better insurance.” In­ stead, the prosecutor maintained that the kickback scheme “defraud[ed] the citizens and government of Ken­ tucky of their right to have the Commonwealth’s affairs conducted honestly.” We held that the scheme did not qualify as mail fraud. “Rather than constru[ing] the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials,” we read the statute “as limited in scope to the protection of property rights.” “If Congress desires to go further,” we stated, “it must speak more clearly.” —————— 36 In addition to upholding honest-services prosecutions, courts also increasingly approved use of the mail-fraud statute to attack corruption that deprived victims of other kinds of intangible rights, including election fraud and privacy violations. See, e.g., ; 483 U.S. 350, 3–364, and nn. 1–4 (STEVENS, J., dissenting). 38 SKILLING v. UNITED STATES Opinion of the Court 3 Congress responded swiftly. The following year, it enacted a new statute “specifically to cover one of the ‘intangible rights’ that lower courts had protected prior to McNally: ‘the intangible right of honest services.’ ” In full, the honest-services statute stated: “For the purposes of th[e] chapter [of the United States Code that prohibits, inter alia, mail fraud, and wire fraud, ], the term ‘scheme or artifice to defraud’ includes a scheme or artifice to deprive another of the intangible right of honest ser­ vices.” B Congress, Skilling charges, reacted quickly but not clearly: He asserts that is unconstitutionally vague. To satisfy due process, “a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordi­ nary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.” v. Lawson, 461 U.S. 352, 357 (1983). The void-for-vagueness doctrine embraces these requirements. According to Skilling, meets neither of the two due process essentials. First, the phrase “the intangible right of honest services,” he contends, does not adequately define what behavior it bars. Brief for Petitioner 38–39. Second, he alleges, ’s “standardless sweep allows policemen, prosecutors, and juries to pursue their personal predilections,” thereby “facilitat[ing] opportunistic and arbitrary prosecutions.” (quoting 461 U.S., ). In urging invalidation of Skilling swims against our case law’s current, which requires us, if we can, to construe, not condemn, Congress’ enactments. See, e.g., Cite as: 561 U. S. (2010) 39 Opinion of the Court Civil Service (1). See also United (stressing, in response to a vagueness challenge, “[t]he strong presumptive validity that attaches to an Act of Congress”). Alert to ’s potential breadth, the Courts of Appeals have divided on how best to interpret the statute.37 Uniformly, however, they have declined to throw out the statute as irremedia­ bly vague.38 We agree that should be construed rather than invalidated. First, we look to the doctrine developed in pre-McNally cases in an endeavor to ascertain the mean­ ing of the phrase “the intangible right of honest services.” Second, to preserve what Congress certainly intended the statute to cover, we pare that body of precedent down to its core: In the main, the pre-McNally cases involved fraudulent schemes to deprive another of honest services through bribes or kickbacks supplied by a third party who had not been deceived. Confined to these paramount —————— 37 Courts have disagreed about whether prosecutions must be based on a violation of state law, compare, e.g., United with, e.g., United 1–1 vacated and remanded, post, p. ; whether a defendant must contemplate that the victim suffer economic harm, compare, e.g., United with, e.g., United vacated and remanded, post, p. ; and whether the defendant must act in pursuit of private gain, compare, e.g., United 655 with, e.g., United 277 F.3d 692 (CA3 2002). 38 See, e.g., United 1 ; United ; United 7 F.3d 1081, ; United ; Brumley, 116 F.3d, at 7–733; United ; United ; United 40 SKILLING v. UNITED STATES Opinion of the Court applications, presents no vagueness problem. 1 There is no doubt that Congress intended to refer to and incorporate the honest-services doctrine recognized in Court of Appeals’ decisions before McNally derailed the intangible-rights theory of fraud. See Brief for Petitioner 39; Brief for United States 37–38; post, at 2, 8 (SCALIA, J., concurring in part and concurring in judgment). Congress enacted on the heels of McNally and drafted the statute using that decision’s terminology. See 483 U.S., at 355 (“intangible righ[t]”); (STEVENS, J., dis­ senting) (“right to honest services”).39 As the Second Circuit in its leading analysis of : “The definite article ‘the’ suggests that ‘intangible right of honest services’ had a specific meaning to Congress when it enacted the statute—Congress was recriminalizing mail- and wire-fraud schemes to de­ prive others of that ‘intangible right of honest ser­ vices,’ which had been protected before McNally, not all intangible rights of honest services whatever they might be thought to be.” United 354 F.3d 124, 137–13840 —————— 39 Although verbal formulations varied slightly, the words employed by the Courts of Appeals prior to McNally described the same concept: “honest services,” e.g., United ; “honest and faithful services,” e.g., United ; and “faithful and honest services,” e.g., United 40 We considered a similar Court-Congress interplay in McDermott Int’l, which involved the inter­ pretation of the term “seaman” in the Jones Act, 46 U.S. C. App. (2000 ed.). The Act, we recognized, “respond[ed] directly to” our deci­ sion in The Osceola, and “adopt[ed] without further elaboration the term used in” that case, so we “assume[d] that the Jones Act use[d] ‘seaman’ in the same way.” Cite as: 561 U. S. (2010) 41 Opinion of the Court 2 Satisfied that Congress, by enacting “meant to reinstate the body of pre-McNally honest-services law,” post, at 8 (opinion of SCALIA, J.), we have surveyed that case law. See infra, at 43–44, 46. In parsing the Courts of Appeals decisions, we acknowledge that Skilling’s vague­ ness challenge has force, for honest-services decisions preceding McNally were not models of clarity or consis­ tency. See Brief for Petitioner 39–42 (describing divisions of opinions). See also post, at 3–7 (opinion of SCALIA, J.). While the honest-services cases preceding McNally domi­ nantly and consistently applied the fraud statute to brib­ ery and kickback schemes—schemes that were the basis of most honest-services prosecutions—there was consider­ able disarray over the statute’s application to conduct outside that core category. In light of this disarray, Skill­ ing urges us, as he urged the Fifth Circuit, to invalidate the statute in toto. Brief for Petitioner 48 (Section 1346 “is intolerably and unconstitutionally vague.”); Brief of De­ fendant-Appellant Jeffrey K. Skilling in No. 06–20885 (CA5), p. 65, n. 21 (“[S]ection 1346 should be invalidated as unlawfully vague on its face.”). It has long been our practice, however, before striking a federal statute as impermissibly vague, to consider whether the prescription is amenable to a limiting con­ struction. See, e.g., U.S. 648, 657 (“The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” (emphasis added)). See also ; Schneider v. Smith,41 We have accordingly —————— 41 “This cardinal principle has its roots in Chief Justice Marshall’s opinion for the Court in 118 (1804), and has for so long been applied by this Court that it is beyond debate.” Edward J. DeBartolo See, e.g., 42 SKILLING v. UNITED STATES Opinion of the Court instructed “the federal courts to avoid constitutional difficulties by [adopting a limiting interpretation] if such a construction is fairly possible.” ; see United (“[I]f the general class of offenses to which the statute is di­ rected is plainly within its terms, the statute will not be struck down as vague And if this general class of offenses can be made constitutionally definite by a reason­ able construction of the statute, this Court is under a duty to give the statute that construction.”). Arguing against any limiting construction, Skilling contends that it is impossible to identify a salvageable honest-services core; “the pre-McNally caselaw,” he as­ serts, “is a hodgepodge of oft-conflicting holdings” that are “hopelessly unclear.” Brief for Petitioner 39 (some capi­ talization and italics omitted). We have rejected an argu­ ment of the same tenor before. In Civil Service Comm’n v. Letter Carriers, federal employees challenged a provision of the Hatch Act that incorporated earlier decisions of the United States Civil Service Commission enforcing a simi­ lar law. “[T]he several thousand adjudications of the Civil —————— New ; ; United States v. Thirty-seven Photographs, ; Machinists v. Street, ; United States v. Rumely, 345 U.S. 41, 45 (1953); ; (19); Lucas v. Alexander, 279 U.S. 577 (1929); Richmond Screw Anchor v. United States, 275 U.S. 331, 346 (1928); Panama R. 4 U.S. 375, (1924); United States ex rel. Attorney ; United 76 (1838) (Story, J.); (Story, J.). (statute made it criminal to address “any offensive, derisive, or annoy­ ing word” to any person in a public place; vagueness obviated by state­ court construction of the statute to cover only words having “a direct tendency to cause acts of violence” by the addressee (internal quotation marks omitted)). Cite as: 561 U. S. (2010) 43 Opinion of the Court Service Commission,” the employees maintained, were “an impenetrable jungle”—“undiscoverable, inconsistent, [and] incapable of yielding any meaningful rules to govern present or future conduct.” 413 U.S., at dful that “our task [wa]s not to destroy the Act if we c[ould], but to construe it,” we held that “the rules that had evolved over the years from repeated adjudications were subject to sufficiently clear and summary statement.” at –572. A similar observation may be made here. Although some applications of the pre-McNally honest-services doctrine occasioned disagreement among the Courts of Appeals, these cases do not cloud the doctrine’s solid core: The “vast majority” of the honest-services cases involved offenders who, in violation of a fiduciary duty, participated in bribery or kickback schemes. United ; see Brief for United States 42, and n. 4 (citing dozens of examples).42 Indeed, the McNally case itself, which spurred Congress to enact presented a paradigmatic kickback fact pattern. –353, 360. Congress’ reversal of McNally and reinstatement of the honest-services doctrine, we conclude, can and should be salvaged by confining its scope to the core pre-McNally applications. As already at 35–36, the honest-services doctrine had its genesis in prosecutions involving bribery —————— 42 JUSTICE SCALIA emphasizes divisions in the Courts of Appeals re­ garding the source and scope of fiduciary duties. Post, at 3–5. But these debates were rare in bribe and kickback cases. The existence of a fiduciary relationship, under any definition of that term, was usually beyond dispute; examples include public official-public, see, e.g., United ; employee-employer, see, e.g., United ; and union official-union members, see, e.g., United (CA4 1986). See generally 233 (noting the “established doctrine that [a fiduciary] duty arises from a specific relationship between two parties”). 44 SKILLING v. UNITED STATES Opinion of the Court allegations. See 117 F.2d, (public sec­ tor); Procter & Gamble 47 F. Supp., at (private sector). See also United 546 Both before McNally and after ’s enactment, Courts of Appeals described schemes involving bribes or kickbacks as “core honest services fraud precedents,” United 1077 ; “paradigm case[s],” United States v. deVegter, 198 F.3d 14, 17–18 ; “[t]he most obvious form of honest services fraud,” United States v. Carbo, ; “core misconduct covered by the statute,” United States v. Urciuoli, 513 F.3d 290, 294 ; “most [of the] honest services cases,” United ; “typical,” United ; “clear-cut,” United 591 F.2d 1347, 3 ; and “uniformly cover[ed],” United 98 F.3d 16, n. 30 See also Tr. of Oral Arg. 43 (counsel for the Government) (“[T]he bulk of pre-McNally honest services cases” entailed bribes or kickbacks); Brief for Petitioner 49 (“Bribes and kickbacks were the paradigm [pre-McNally] cases,” constituting “[t]he overwhelming majority of prosecutions for honest services fraud.”). In view of this history, there is no doubt that Congress intended to reach at least bribes and kickbacks. Reading the statute to proscribe a wider range of offensive conduct, we acknowledge, would raise the due process concerns underlying the vagueness doctrine.43 To preserve —————— 43 Apprised that a broader reading of could render the statute impermissibly vague, Congress, we believe, would have drawn the honest-services line, as we do now, at bribery and kickback schemes. Levin v. Commerce Energy, Inc., 560 U. S. (2010) (slip op., at 11) (“[C]ourts may attempt to implement what the legislature would have willed had it been apprised of the constitutional infir­ mity.”); United (“We seek to Cite as: 561 U. S. (2010) 45 Opinion of the Court the statute without transgressing constitutional limita­ tions, we now hold that criminalizes only the bribe­ and-kickback core of the pre-McNally case law.44 3 The Government urges us to go further by locating within ’s compass another category of proscribed conduct: “undisclosed self-dealing by a public official or private employee—i.e., the taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty.” at 43–44. “[T]he theory of liability in McNally itself was nondisclosure of a conflicting financial interest,” the Government observes, —————— determine what ‘Congress would have intended’ in light of the Court’s constitutional holding.”). 44 JUSTICE SCALIA charges that our construction of is “not inter­ pretation but invention.” Post, at 8. Stating that he “know[s] of no precedent for ‘paring down’ ” the pre-McNally case law to its core, ib he contends that the Court today “wield[s] a power we long ago abjured: the power to define new federal crimes,” post, at 1. See also, e.g., post, at 9, 10, 11. As at 41–42, and n. 41, cases “paring down” federal statutes to avoid constitutional shoals are legion. These cases recognize that the Court does not legislate, but instead respects the legislature, by preserving a statute through a limiting interpretation. See United 7–8, n. 6 (This Court does not “create a common law crime” by adopt­ ing a “narrow[ing] constru[ction].” ); –45, n. 43. Given that the Courts of Appeals uniformly recognized bribery and kickback schemes as honest-services fraud before McNally, and that these schemes composed the lion’s share of honest-services cases, limiting to these heartland applications is surely “fairly possible.” 331 ; (opinion of the Court by SCALIA, J.) (when adopting a limiting construction, “[t]he lowest common denominator, as it were, must govern”). So construed, the statute is not unconstitutionally vague. See infra, at 48–49; post, at 8. Only by taking a wrecking ball to a statute that can be salvaged through a reasonable narrowing interpretation would we act out of step with precedent. 46 SKILLING v. UNITED STATES Opinion of the Court and “Congress clearly intended to revive th[at] nondisclo­ sure theory.” Moreover, “[a]lthough not as numerous as the bribery and kickback cases,” the Gov­ ernment asserts, “the pre-McNally cases involving undis­ closed self-dealing were abundant.” Neither of these contentions withstands close inspec­ tion. McNally, as we have already 43, involved a classic kickback scheme: A public official, in exchange for routing Kentucky’s insurance business through a middleman company, arranged for that com­ pany to share its commissions with entities in which the official held an –353, 360. This was no mere failure to disclose a conflict of interest; rather, the official conspired with a third party so that both would profit from wealth generated by public con­ tracts. See at 352–353. Reading to proscribe bribes and kickbacks—and nothing more—satisfies Con­ gress’ undoubted aim to reverse McNally on its facts. Nor are we persuaded that the pre-McNally conflict-of­ interest cases constitute core applications of the honest­ services doctrine. Although the Courts of Appeals upheld honest-services convictions for “some schemes of non­ disclosure and concealment of material information,” 591 F.2d, at 1, they reached no consensus on which schemes qualified. In light of the relative infre­ quency of conflict-of-interest prosecutions in comparison to bribery and kickback charges, and the intercircuit incon­ sistencies they produced, we conclude that a reasonable limiting construction of must exclude this amor­ phous category of cases. Further dispelling doubt on this point is the familiar principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” ). “This interpretive guide is especially appropriate in construing [] because mail [and Cite as: 561 U. S. (2010) 47 Opinion of the Court wire] fraud [are] predicate offense[s] under [the Racketeer Influenced and Corrupt Organizations Act], 18 U.S. C. (1994 ed., Supp. IV), and the money laundering statute, Holding that honest-services fraud does not encompass conduct more wide-ranging than the paradigmatic cases of bribes and kickbacks, we resist the Government’s less constrained construction absent Congress’ clear instruc­ tion otherwise. E.g., United In sum, our construction of “establish[es] a uni­ form national standard, define[s] honest services with clarity, reach[es] only seriously culpable conduct, and accomplish[es] Congress’s goal of ‘overruling’ McNally.” Brief for Albert W. Alschuler as Amicus Curiae in Wey hrauch v. United States, O. T. No. 08–1196, pp. 28– 29. “If Congress desires to go further,” we reiterate, “it must speak more clearly than it has.” McNally, 483 U.S.,45 —————— 45 If Congress were to take up the enterprise of criminalizing “undis­ closed self-dealing by a public official or private employee,” Brief for United States 43, it would have to employ standards of sufficient definiteness and specificity to overcome due process concerns. The Government proposes a standard that prohibits the “taking of official action by the employee that furthers his own undisclosed financial interests while purporting to act in the interests of those to whom he owes a fiduciary duty,” so long as the employee acts with a specific intent to deceive and the undisclosed conduct could influence the victim to change its behavior. at 43–44. See also at 40–41. That formulation, however, leaves many questions unanswered. How direct or significant does the conflicting financial interest have to be? To what extent does the official action have to further that interest in order to amount to fraud? To whom should the disclosure be made and what information should it convey? These questions and others call for particular care in attempting to formulate an adequate criminal prohi­ bition in this context. 48 SKILLING v. UNITED STATES Opinion of the Court 4 Interpreted to encompass only bribery and kickback schemes, is not unconstitutionally vague. Recall that the void-for-vagueness doctrine addresses concerns about (1) fair notice and (2) arbitrary and discriminatory prosecutions. See A prohibi­ tion on fraudulently depriving another of one’s honest services by accepting bribes or kickbacks does not present a problem on either score. As to fair notice, “whatever the school of thought con­ cerning the scope and meaning of ” it has always been “as plain as a pikestaff that” bribes and kickbacks constitute honest-services fraud, and the statute’s mens rea requirement further blunts any notice concern, see, e.g., 5 U.S. 91, –104 (plurality opinion). See also Broadrick v. Oklahoma, 413 U.S. 601, 608 (1) (“[E]ven if the outermost boundaries of [a statute are] imprecise, any such uncertainty has little relevance where appellants’ conduct falls squarely within the ‘hard core’ of the statute’s proscriptions.”). Today’s decision clarifies that no other misconduct falls within ’s province. See United 520 U.S. 259, 6 (“[C]larity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute.”). As to arbitrary prosecutions, we perceive no significant risk that the honest-services statute, as we interpret it today, will be stretched out of shape. Its prohibition on bribes and kickbacks draws content not only from the pre- McNally case law, but also from federal statutes proscrib­ ing—and defining—similar crimes. See, e.g., 18 U.S. C. 666(a)(2); 41 U.S. C. (“The term ‘kick­ back’ means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to [enumerated Cite as: 561 U. S. (2010) 49 Opinion of the Court persons] for the purpose of improperly obtaining or re­ warding favorable treatment in connection with [enumer­ ated circumstances].”).46 See also, e.g., United States v. Ganim, (reviewing honest-services conviction involving bribery in light of elements of bribery under other federal statutes); United 590 F.3d 5, 352–353 ; United 281–286 A criminal defendant who participated in a bribery or kickback scheme, in short, cannot tenably complain about prosecution under on vagueness grounds. C It remains to determine whether Skilling’s conduct violated Skilling’s honest-services prosecution, the Government concedes, was not “prototypical.” Brief for United States 49. The Government charged Skilling with conspiring to defraud Enron’s shareholders by misrepre­ senting the company’s fiscal health, thereby artificially inflating its stock price. It was the Government’s theory at trial that Skilling “profited from the fraudulent scheme through the receipt of salary and bonuses, and through the sale of approximately $200 million in Enron stock, which netted him $89 million.” The Government did not, at any time, allege that Skill­ ing solicited or accepted side payments from a third party in exchange for making these misrepresentations. See Record 418 (May 11, 2006 Letter from the Government to the District Court) (“[T]he indictment does not allege, and the government’s evidence did not show, that [Skill­ —————— 46 Overlap with other federal statutes does not render superflu­ ous. The principal federal bribery statute, for example, generally applies only to federal public officials, so ’s application to state and local corruption and to private-sector fraud reaches misconduct that might otherwise go unpunished. 50 SKILLING v. UNITED STATES Opinion of the Court ing] engaged in bribery.”). It is therefore clear that, as we read Skilling did not commit honest-services fraud. Because the indictment alleged three objects of the con- spiracy—honest-services wire fraud, money-or-property wire fraud, and securities fraud—Skilling’s conviction is flawed. See (1957) (constitutional error occurs when a jury is in­ structed on alternative theories of guilt and returns a general verdict that may rest on a legally invalid theory). This determination, however, does not necessarily require reversal of the conspiracy conviction; we recently con­ firmed, in Hedgpeth v. Pulido, 555 U. S. (per curiam), that errors of the Yates variety are subject to harmless-error analysis. The parties vigorously dispute whether the error was harmless. Compare Brief for United States 52 (“[A]ny juror who voted for conviction based on [the honest-services theory] also would have found [Skilling] guilty of conspiring to commit securities fraud.”) with Reply Brief 30 (The Government “cannot show that the conspiracy conviction rested only on the securities-fraud theory, rather than the distinct, legally­ flawed honest-services theory.”). We leave this dispute for resolution on remand.47 Whether potential reversal on the conspiracy count touches any of Skilling’s other convictions is also an open question. All of his convictions, Skilling contends, hinged on the conspiracy count and, like dominoes, must fall if it —————— 47 The Fifth Circuit appeared to prejudge this issue, noting that, “if any of the three objects of Skilling’s conspiracy offers a legally insuffi­ cient theory,” it “must set aside his conviction.” F.3d, at 543. That reasoning relied on the mistaken premise that Hedgpeth v. Pulido, 555 U. S. (per curiam), governs only cases on collateral review. See F.3d, at 543, n. 10. Harmless-error analysis, we clarify, applies equally to cases on direct appeal. Accordingly, the Fifth Circuit, on remand, should take a fresh look at the parties’ harmless-error arguments. Cite as: 561 U. S. (2010) 51 Opinion of the Court falls. The District Court, deciding Skilling’s motion for bail pending appeal, found this argument dubious, App. 1141a–1142a, but the Fifth Circuit had no occasion to rule on it. That court may do so on remand. * * * For the foregoing reasons, we affirm the Fifth Circuit’s ruling on Skilling’s fair-trial argument, vacate its ruling on his conspiracy conviction, and remand the case for proceedings consistent with this opinion. It is so ordered. Cite as: 561 U. S. (2010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 08–1394 JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 2010] JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom JUSTICE KENNEDY joins except as to Part III, concurring in part and concurring in the judgment.

Justice Scalia

concurring

Skilling v. United States

2010-06-24

https://www.courtlistener.com/opinion/149286/skilling-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/149286/

I agree with the Court that petitioner Jeffrey Skilling’s challenge to the impartiality of his jury and to the District Court’s conduct of the voir dire fails. I therefore join Parts I and II of the Court’s opinion. I also agree that the deci­ sion upholding Skilling’s conviction for so-called “honest­ services fraud” must be reversed, but for a different rea­ son. In my view, the specification in 18 U.S. C. §1346 (2006 ed., Supp. II) that “scheme or artifice to defraud” in the mail-fraud and wire-fraud statutes, §§1341 and 1343 (2006 ed.), includes “a scheme or artifice to deprive an­ other of the intangible right of honest services,” is vague, and therefore violates the Due Process Clause of the Fifth Amendment. The Court strikes a pose of judicial humility in proclaiming that our task is “not to destroy the Act . . . but to construe it,” ante, at 43 (internal quotation marks omitted). But in transforming the prohibition of “honest­ services fraud” into a prohibition of “bribery and kick­ backs” it is wielding a power we long ago abjured: the power to define new federal crimes. See United States v. Hudson, 7 Cranch 32, 34 (1812). 2 SKILLING v. UNITED STATES Opinion of SCALIA, J. I A criminal statute must clearly define the conduct it proscribes, see Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A statute that is unconstitutionally vague cannot be saved by a more precise indictment, see Lan zetta v. New Jersey, 306 U.S. 451, 453 (1939), nor by judicial construction that writes in specific criteria that its text does not contain, see United States v. Reese, 92 U.S. 214, 219–221 (1876). Our cases have described vague statutes as failing “to provide a person of ordinary intelli­ gence fair notice of what is prohibited, or [as being] so standardless that [they] authoriz[e] or encourag[e] seri­ ously discriminatory enforcement.” United States v. Wil liams, 553 U.S. 285, 304 (2008). Here, Skilling argues that §1346 fails to provide fair notice and encourages arbitrary enforcement because it provides no definition of the right of honest services whose deprivation it prohibits. Brief for Petitioner 38–39, 42–44. In my view Skilling is correct. The Court maintains that “the intangible right of honest services ” means the right not to have one’s fiduciaries accept “bribes or kickbacks.” Its first step in reaching that conclusion is the assertion that the phrase refers to “the doctrine developed” in cases decided by lower federal courts prior to our decision in McNally v. United States, 483 U.S. 350 (1987). Ante, at 39. I do not contest that. I agree that Congress used the novel phrase to adopt the lower-court case law that had been disapproved by McNally—what the Court calls “the pre-McNally honest­ services doctrine,” ante, at 43. The problem is that that doctrine provides no “ascertainable standard of guilt,” United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921), and certainly is not limited to “bribes or kick­ backs.” Investigation into the meaning of “the pre-McNally honest-services doctrine” might logically begin with Cite as: 561 U. S. ____ (2010) 3 Opinion of SCALIA, J. McNally itself, which rejected it. That case repudiated the many Court of Appeals holdings that had expanded the meaning of “fraud” in the mail-fraud and wire-fraud stat­ utes beyond deceptive schemes to obtain property. 483 U.S., at 360. If the repudiated cases stood for a prohibi­ tion of “bribery and kickbacks,” one would have expected those words to appear in the opinion’s description of the cases. In fact, they do not. Not at all. Nor did McNally even provide a consistent definition of the pre-existing theory of fraud it rejected. It referred variously to a right of citizens “to have the [State]’s affairs conducted hon­ estly,” id., at 353, to “honest and impartial government,” id., at 355, to “good government,” id., at 356, and “to have public officials perform their duties honestly,” id., at 358. It described prior case law as holding that “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud,” id., at 355. But the pre-McNally Court of Appeals opinions were not limited to fraud by public officials. Some courts had held that those fiduciaries subject to the “honest services” obligation included private individuals who merely par­ ticipated in public decisions, see, e.g., United States v. Gray, 790 F.2d 1290, 1295–1296 (CA6 1986) (citing United States v. Margiotta, 688 F.2d 108, 122 (CA2 1982)), and even private employees who had no role in public decisions, see, e.g., United States v. Lemire, 720 F.2d 1327, 1335–1336 (CADC 1983); United States v. Von Barta, 635 F.2d 999, 1007 (CA2 1980). Moreover, “to say that a man is a fiduciary only begins [the] analysis; it gives direction to further inquiry. . . . What obligations does he owe as a fiduciary?” SEC v. Chenery Corp., 318 U.S. 80, 85–86 (1943). None of the “honest services” cases, neither those pertaining to public officials nor those pertaining to private employees, defined the nature and content of the fiduciary duty central to the “fraud” offense. There was not even universal agreement concerning the 4 SKILLING v. UNITED STATES Opinion of SCALIA, J. source of the fiduciary obligation—whether it must be positive state or federal law, see, e.g., United States v. Rabbitt, 583 F.2d 1014, 1026 (CA8 1978), or merely gen­ eral principles, such as the “obligations of loyalty and fidelity” that inhere in the “employment relationship,” Lemire, supra, at 1336. The decision McNally reversed had grounded the duty in general (not jurisdiction-specific) trust law, see Gray, supra, at 1294, a corpus juris fes­ tooned with various duties. See, e.g., Restatement (Sec­ ond) of Trusts §§169–185 (1976). Another pre-McNally case referred to the general law of agency, United States v. Ballard, 663 F.2d 534, 543, n. 22 (CA5 1981), modified on other grounds by 680 F.2d 352 (1982), which imposes duties quite different from those of a trustee.1 See Re­ statement (Second) of Agency §§377–398 (1957). This indeterminacy does not disappear if one assumes that the pre-McNally cases developed a federal, common­ law fiduciary duty; the duty remained hopelessly unde­ fined. Some courts described it in astoundingly broad language. Blachly v. United States, 380 F.2d 665 (CA5 1967), loftily declared that “[l]aw puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the ‘reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.’ ” Id., at 671 (quoting Gregory v. United States, 253 F.2d 104, 109 (CA5 1958)). Other courts unhelpfully added that any scheme “contrary to public policy” was also condemned by —————— 1 The Court is untroubled by these divisions because “these debates were rare in bribe and kickback cases,” in which “[t]he existence of a fiduciary relationship, under any definition of that term, was usually beyond dispute,” ante, at 43, n. 42. This misses the point. The Courts of Appeals may have consistently found unlawful the acceptance of a bribe or kickback by one or another sort of fiduciary, but they have not consistently described (as the statute does not) any test for who is a fiduciary. Cite as: 561 U. S. ____ (2010) 5 Opinion of SCALIA, J. the statute, United States v. Bohonus, 628 F.2d 1167, 1171 (CA9 1980). See also United States v. Mandel, 591 F.2d 1347, 1361 (CA4 1979) (any scheme that is “contrary to public policy and conflicts with accepted standards of moral uprightness, fundamental honesty, fair play and right dealing”). Even opinions that did not indulge in such grandiloquence did not specify the duty at issue beyond loyalty or honesty, see, e.g., Von Barta, supra, at 1005– 1006. Moreover, the demands of the duty were said to be greater for public officials than for private employees, see, e.g., Lemire, supra, at 1337, n. 13; Ballard, supra, at 541, n. 17, but in what respects (or by how much) was never made clear. The indefiniteness of the fiduciary duty is not all. Many courts held that some je-ne-sais-quoi beyond a mere breach of fiduciary duty was needed to establish honest­ services fraud. See, e.g., Von Barta, supra, at 1006 (col­ lecting cases); United States v. George, 477 F.2d 508, 512 (CA7 1973). There was, unsurprisingly, some dispute about that, at least in the context of acts by persons owing duties to the public. See United States v. Price, 788 F.2d 234, 237 (CA4 1986). And even among those courts that did require something additional where a public official was involved, there was disagreement as to what the addition should be. For example, in United States v. Bush, 522 F.2d 641 (1975), the Seventh Circuit held that mate­ rial misrepresentations and active concealment were enough, id., at 647–648. But in Rabbitt, 583 F.2d 1014, the Eighth Circuit held that actual harm to the State was needed, id., at 1026. Similar disagreements occurred with respect to private employees. Courts disputed whether the defendant must use his fiduciary position for his own gain. Compare Lemire, supra, at 1335 (yes), with United States v. Bron ston, 658 F.2d 920, 926 (CA2 1981) (no). One opinion upheld a mail-fraud conviction on the ground that the 6 SKILLING v. UNITED STATES Opinion of SCALIA, J. defendant’s “failure to disclose his receipt of kickbacks and consulting fees from [his employer’s] suppliers resulted in a breach of his fiduciary duties depriving his employer of his loyal and honest services.” United States v. Bryza, 522 F.2d 414, 422 (CA7 1975). Another opinion, however, demanded more than an intentional failure to disclose: “There must be a failure to disclose something which in the knowledge or contemplation of the employee poses an independent business risk to the employer.” Lemire, 720 F.2d, at 1337. Other courts required that the victim suffer some loss, see, e.g., Ballard, supra, at 541–542—a proposition that, of course, other courts rejected, see, e.g., United States v. Newman, 664 F.2d 12, 20 (CA2 1981); United States v. O’Malley, 535 F.2d 589, 592 (CA10 1976). The Court’s statement today that there was a deprivation of honest services even if “the scheme occasioned a money or property gain for the betrayed party,” ante, at 36, is therefore true, except to the extent it is not. In short, the first step in the Court’s analysis—holding that “the intangible right of honest services” refers to “the honest-services doctrine recognized in Court of Appeals’ decisions before McNally,” ante, at 40—is a step out of the frying pan into the fire. The pre-McNally cases provide no clear indication of what constitutes a denial of the right of honest services. The possibilities range from any action that is contrary to public policy or otherwise immoral, to only the disloyalty of a public official or employee to his principal, to only the secret use of a perpetrator’s position of trust in order to harm whomever he is beholden to. The duty probably did not have to be rooted in state law, but maybe it did. It might have been more demanding in the case of public officials, but perhaps not. At the time §1346 was enacted there was no settled criterion for choosing among these options, for conclusively settling what was in Cite as: 561 U. S. ____ (2010) 7 Opinion of SCALIA, J. and what was out.2 II The Court is aware of all this. It knows that adopting by reference “the pre-McNally honest-services doctrine,” ante, at 43, is adopting by reference nothing more precise than the referring term itself (“the intangible right of honest services”). Hence the deus ex machina: “[W]e pare that body of precedent down to its core,” ante, at 39. Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast major­ ity,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 (internal quotation marks omitted), THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine. Even if that conclusion followed from its premises, it would not suffice to eliminate the vagueness of the stat­ ute. It would solve (perhaps) the indeterminacy of what acts constitute a breach of the “honest services” obligation under the pre-McNally law. But it would not solve the most fundamental indeterminacy: the character of the “fiduciary capacity” to which the bribery and kickback —————— 2 Courts since §1346’s enactment have fared no better, reproducing some of the same disputes that predated McNally. See, e.g., Sorich v. United States, 555 U. S. ___, ___–___ (2009) (SCALIA, J., dissenting from denial of certiorari) (slip op., at 3–4) (collecting cases). We have previ­ ously found important to our vagueness analysis “the conflicting results which have arisen from the painstaking attempts of enlightened judges in seeking to carry out [a] statute in cases brought before them.” United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921). I am at a loss to explain why the Court barely mentions those conflicts today. 8 SKILLING v. UNITED STATES Opinion of SCALIA, J. restriction applies. Does it apply only to public officials? Or in addition to private individuals who contract with the public? Or to everyone, including the corporate officer here? The pre-McNally case law does not provide an answer. Thus, even with the bribery and kickback limita­ tion the statute does not answer the question “What is the criterion of guilt?” But that is perhaps beside the point, because it is obvi­ ous that mere prohibition of bribery and kickbacks was not the intent of the statute. To say that bribery and kickbacks represented “the core” of the doctrine, or that most cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves is that the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is much more. Among all the pre-McNally smörgåsbord-offerings of varieties of honest-services fraud, not one is limited to bribery and kickbacks. That is a dish the Court has cooked up all on its own. Thus, the Court’s claim to “respec[t] the legislature,” ante, at 45, n. 44 (emphasis deleted), is false. It is entirely clear (as the Court and I agree) that Congress meant to reinstate the body of pre-McNally honest-services law; and entirely clear that that prohibited much more (though precisely what more is uncertain) than bribery and kick­ backs. Perhaps it is true that “Congress intended §1346 to reach at least bribes and kickbacks,” ante, at 44. That simply does not mean, as the Court now holds, that “§1346 criminalizes only” bribery and kickbacks, ante, at 45. Arriving at that conclusion requires not interpretation but invention. The Court replaces a vague criminal stan­ dard that Congress adopted with a more narrow one (in­ cluded within the vague one) that can pass constitutional muster. I know of no precedent for such “paring down,”3 —————— 3 The only alleged precedent the Court dares to describe is Civil Ser Cite as: 561 U. S. ____ (2010) 9 Opinion of SCALIA, J. and it seems to me clearly beyond judicial power. This is not, as the Court claims, ante, at 41, simply a matter of adopting a “limiting construction” in the face of potential unconstitutionality. To do that, our cases have been care­ ful to note, the narrowing construction must be “fairly possible,” Boos v. Barry, 485 U.S. 312, 331 (1988), “rea­ sonable,” Hooper v. California, 155 U.S. 648, 657 (1895), or not “plainly contrary to the intent of Congress,” Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988). As we have seen (and the Court does not contest), no court before McNally concluded that the “deprivation of honest ser­ vices” meant only the acceptance of bribes or kickbacks. If it were a “fairly possible” or “reasonable” construction, not “contrary to the intent of Congress,” one would think that some court would have adopted it. The Court does not even point to a post-McNally case that reads §1346 to cover only bribery and kickbacks, and I am aware of none. The canon of constitutional avoidance, on which the Court so heavily relies, see ante, at 41–42, states that “when the constitutionality of a statute is assailed, if the —————— vice Comm’n v. Letter Carriers, 413 U.S. 548 (1973). That case in­ volved a provision of the Hatch Act incorporating prior adjudications of the Civil Service Commission. We upheld the provision against a vagueness challenge—not, however, by “paring down” the adjudications to a more narrow rule that we invented, but by concluding that what they held was not vague. See id., at 571–574. The string of cases the Court lists, see ante, at 41–42, n. 41, (almost none of which addressed claims of vagueness), have nothing to do with “paring down.” The one that comes closest, United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), specified a time limit within which proceedings authorized by statute for the forfeiture of obscene imported materials had to be commenced and completed. That is not much different from “reading in” a reasonable-time requirement for obligations undertaken in con­ tracts, and can hardly be described as a rewriting or “paring down” of the statute. The Court relied on legislative history anticipating that the proceedings would be prompt, id., at 370–371, and noted that (unlike here) it was not “decid[ing] issues of policy,” id., at 372. 10 SKILLING v. UNITED STATES Opinion of SCALIA, J. statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.” United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909); see also United States v. Rumely, 345 U.S. 41, 45 (1953) (describing the canon as decisive “in the choice of fair alternatives”). Here there is no choice to be made between two “fair alterna­ tives.” Until today, no one has thought (and there is no basis for thinking) that the honest-services statute prohib­ ited only bribery and kickbacks. I certainly agree with the Court that we must, “if we can,” uphold, rather than “condemn,” Congress’s enact­ ments, ante, at 38. But I do not believe we have the power, in order to uphold an enactment, to rewrite it. Congress enacted the entirety of the pre-McNally honest­ services law, the content of which is (to put it mildly) unclear. In prior vagueness cases, we have resisted the temptation to make all things right with the stroke of our pen. See, e.g., Smith v. Goguen, 415 U.S. 566, 575 (1974). I would show the same restraint today, and reverse Skill­ ing’s conviction on the basis that §1346 provides no “ascer­ tainable standard” for the conduct it condemns, L. Cohen, 255 U.S., at 89. Instead, the Court today adds to our functions the prescription of criminal law. III A brief word about the appropriate remedy. As I noted supra, at 2, Skilling has argued that §1346 cannot be constitutionally applied to him because it affords no defi­ nition of the right whose deprivation it prohibits. Though this reasoning is categorical, it does not make Skilling’s challenge a “facial” one, in the sense that it seeks invalida­ tion of the statute in all its applications, as opposed to preventing its enforcement against him. I continue to Cite as: 561 U. S. ____ (2010) 11 Opinion of SCALIA, J. doubt whether “striking down” a statute is ever an appro­ priate exercise of our Article III power. See Chicago v. Morales, 527 U.S. 41, 77 (1999) (SCALIA, J., dissenting). In the present case, the universality of the infirmity Skill­ ing identifies in §1346 may mean that if he wins, anyone else prosecuted under the statute will win as well, see Smith, supra, at 576–578. But Skilling only asks that his conviction be reversed, Brief for Petitioner 57–58, so the remedy he seeks is not facial invalidation. I would therefore reverse Skilling’s conviction under §1346 on the ground that it fails to define the conduct it prohibits. The fate of the statute in future prosecutions— obvious from my reasoning in the case—would be a matter for stare decisis. * * * It is hard to imagine a case that more clearly fits the description of what Chief Justice Waite said could not be done, in a colorful passage oft-cited in our vagueness opinions, United States v. Reese, 92 U.S., at 221: “The question, then, to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. “It would certainly be dangerous if the legislature could set a net large enough to catch all possible of­ fenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the gov­ ernment. . . . “To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.” Cite as: 561 U. S. ____ (2010) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1394 _________________ JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 2010] JUSTICE ALITO, concurring in part and concurring in the judgment. I join the judgment of the Court and all but Part II of the Court’s opinion. I write separately to address peti tioner’s jury-trial argument. The Sixth Amendment guarantees criminal defendants a trial before “an impartial jury.” In my view, this re quirement is satisfied so long as no biased juror is actually seated at trial. Of course, evidence of pretrial media attention and widespread community hostility may play a role in the bias inquiry. Such evidence may be important in assessing the adequacy of voir dire, see, e.g., Mu’Min v. Virginia, 500 U.S. 415, 428–432 (1991), or in reviewing the denial of requests to dismiss particular jurors for cause, see, e.g., Patton v. Yount, 467 U.S. 1025, 1036– 1040 (1984). There are occasions in which such evidence weighs heavily in favor of a change of venue. In the end, however, if no biased jury is actually seated, there is no violation of the defendant’s right to an impartial jury. See id., at 1031–1035, 1041; Murphy v. Florida, 421 U.S. 794, 800–801, 803 (1975); see also Rivera v. Illinois, 556 U. S. ___, ___–___ (2009) (slip op., at 7–8); United States v. Martinez-Salazar, 528 U.S. 304, 311, 316–317 (2000); Smith v. Phillips, 455 U.S. 209, 215–218 (1982). Petitioner advances a very different understanding of 2 SKILLING v. UNITED STATES Opinion of ALITO, J. the jury-trial right. Where there is extraordinary pretrial publicity and community hostility, he contends, a court must presume juror prejudice and thus grant a change of venue. Brief for Petitioner 25–34. I disagree. Careful voir dire can often ensure the selection of impartial jurors even where pretrial media coverage has generated much hostile community sentiment. Moreover, once a jury has been selected, there are measures that a trial judge may take to insulate jurors from media coverage during the course of the trial. What the Sixth Amendment requires is “an impartial jury.” If the jury that sits and returns a verdict is impartial, a defendant has received what the Sixth Amendment requires. The rule that petitioner advances departs from the text of the Sixth Amendment and is difficult to apply. It re quires a trial judge to determine whether the adverse pretrial media coverage and community hostility in a particular case has reached a certain level of severity, but there is no clear way of demarcating that level or of de termining whether it has been met. Petitioner relies chiefly on three cases from the 1960’s— Sheppard v. Maxwell, 384 U.S. 333 (1966), Estes v. Texas, 381 U.S. 532 (1965), and Rideau v. Louisiana, 373 U.S. 723 (1963). I do not read those cases as demanding peti tioner’s suggested approach. As the Court notes, Sheppard and Estes primarily “involved media interfer ence with courtroom proceedings during trial.” Ante, at 16, n. 14; see also post, at 20 (SOTOMAYOR, J., concurring in part and dissenting in part). Rideau involved unique events in a small community. I share some of JUSTICE SOTOMAYOR’s concerns about the adequacy of the voir dire in this case and the trial judge’s findings that certain jurors could be impartial. See post, at 34–37. But those highly fact-specific issues are not within the question presented. Pet. for Cert. i. I also do not understand the opinion of the Court as reaching Cite as: 561 U. S. ____ (2010) 3 Opinion of ALITO, J. any question regarding a change of venue under Federal Rule of Criminal Procedure 21. Because petitioner, in my view, is not entitled to a re versal of the decision below on the jury-trial question that is before us, I join the judgment of the Court in full. Cite as: 561 U. S. ____ (2010) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1394 _________________ JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 2010] JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and JUSTICE BREYER join, concurring in part and dissenting in part. I concur in the Court’s resolution of the honest-services fraud question and join Part III of its opinion. I respect­ fully dissent, however, from the Court’s conclusion that Jeffrey Skilling received a fair trial before an impartial jury. Under our relevant precedents, the more intense the public’s antipathy toward a defendant, the more careful a court must be to prevent that sentiment from tainting the jury. In this case, passions ran extremely high. The sudden collapse of Enron directly affected thousands of people in the Houston area and shocked the entire com­ munity. The accompanying barrage of local media cover­ age was massive in volume and often caustic in tone. As Enron’s one-time CEO, Skilling was at the center of the storm. Even if these extraordinary circumstances did not constitutionally compel a change of venue, they required the District Court to conduct a thorough voir dire in which prospective jurors’ attitudes about the case were closely scrutinized. The District Court’s inquiry lacked the neces­ sary thoroughness and left serious doubts about whether the jury empaneled to decide Skilling’s case was capable of rendering an impartial decision based solely on the evi­ dence presented in the courtroom. Accordingly, I would 2 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. grant Skilling relief on his fair-trial claim. I The majority understates the breadth and depth of community hostility toward Skilling and overlooks signifi­ cant deficiencies in the District Court’s jury selection process. The failure of Enron wounded Houston deeply. Virtually overnight, what had been the city’s “largest, most visible, and most prosperous company,” its “foremost social and charitable force,” and “a source of civic pride” was reduced to a “shattered shell.” App. ¶¶11, 13, pp. 649a–650a, 1152a. Thousands of the company’s employ­ ees lost their jobs and saw their retirement savings van­ ish. As the effects rippled through the local economy, thousands of additional jobs disappeared, businesses shuttered, and community groups that once benefited from Enron’s largesse felt the loss of millions of dollars in con­ tributions. See, e.g., 3 Supp. Record 1229, 1267; see also 554 F.3d 529, 560 (CA5 2009) (“Accounting firms that serviced Enron’s books had less work, hotels had more open rooms, restaurants sold fewer meals, and so on”). Enron’s community ties were so extensive that the entire local U. S. Attorney’s Office was forced to recuse itself from the Government’s investigation into the company’s fall. See 3 Supp. Record 608 (official press release). With Enron’s demise affecting the lives of so many Houstonians, local media coverage of the story saturated the community. According to a defense media expert, the Houston Chronicle—the area’s leading newspaper— assigned as many as 12 reporters to work on the Enron story full time. App. 568a–569a. The paper mentioned Enron in more than 4,000 articles during the 3-year period following the company’s December 2001 bankruptcy filing. Hundreds of these articles discussed Skilling by name. See 3 Supp. Record 2114. Skilling’s expert, a professional journalist and academic with 30 years’ experience, could Cite as: 561 U. S. ____ (2010) 3 Opinion of SOTOMAYOR, J. not “recall another instance where a local paper dedicated as many resources to a single topic over such an extended period of time as the Houston Chronicle . . . dedicated to Enron.” App. ¶32, p. 570a. Local television news coverage was similarly pervasive and, in terms of “editorial theme,” “largely followed the Chronicle’s lead.” Id., ¶11, at 559a; see also id., at 717a. Between May 2002 and October 2004, local stations aired an estimated 19,000 news seg­ ments involving Enron, more than 1600 of which men­ tioned Skilling. 3 Supp. Record 2116. While many of the stories were straightforward news items, many others conveyed and amplified the commu­ nity’s outrage at the top executives perceived to be respon­ sible for the company’s bankruptcy. A Chronicle report on Skilling’s 2002 testimony before Congress is typical of the coverage. It began, “Across Houston, Enron employees watched former chief executive Jeffrey Skilling’s congres­ sional testimony on television, turning incredulous, angry and then sarcastic by turns, as a man they knew as savvy and detail-oriented pleaded memory failure and ignorance about critical financial transactions at the now-collapsed energy giant.” App. 1218a. “ ‘He is lying; he knew every­ thing,’ said [an employee], who said she had seen Skilling frequently over her 18 years with the firm, where Skilling was known for his intimate grasp of the inner doings at the company. ‘I am getting sicker by the minute.’ ” Id., at 1219a. A companion piece quoted a local attorney who called Skilling an “idiot” who was “in denial”; he added, “I’m glad [Skilling’s] not my client.” Id., at 592a–593a. Articles deriding Enron’s senior executives were juxta­ posed with pieces expressing sympathy toward and soli­ darity with the company’s many victims. Skilling’s media expert counted nearly a hundred victim-related stories in the Chronicle, including a “multi-page layout entitled ‘The Faces of Enron,’ ” which poignantly described the gut­ wrenching experiences of former employees who lost vast 4 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. sums of money, faced eviction from their homes, could not afford Christmas gifts for their children, and felt “scared,” “hurt,” “humiliat[ed],” “helpless,” and “betrayed.” Id., ¶71, at 585a–586a. The conventional wisdom that blame for Enron’s devastating implosion and the ensuing human tragedy ultimately rested with Skilling and former Enron Chairman Kenneth Lay became so deeply ingrained in the popular imagination that references to their involvement even turned up on the sports pages: “If you believe the story about [Coach Bill Parcells] not having anything to do with the end of Emmitt Smith’s Cowboys career, then you probably believe in other far-fetched concepts. Like Jeff Skilling having nothing to do with Enron’s collapse.” 3 Supp. Record 811. When a federal grand jury indicted Skilling, Lay, and Richard Causey—Enron’s former chief accounting officer— in 2004 on charges of conspiracy to defraud, securities fraud, and other crimes, the media placed them directly in its crosshairs. In the words of one article, “there was one thing those whose lives were touched by the once-exalted company all seemed to agree upon: The indictment of former Enron CEO Jeff Skilling was overdue.” App. 1393a. Scoffing at Skilling’s attempts to paint himself as “a ‘victim’ of his subordinates,” id., at 1394a, the Chronicle derided “the doofus defense” that Lay and Skilling were expected to offer, id., at 1401a.1 The Chronicle referred to —————— 1 See also App. 735a (describing Enron as “hardball fraud” and noting that “Enron prosecutors have approached the case more like an organ­ ized crime investigation than a corporate fraud prosecution,” a “tactic [that] makes sense” given “the sheer pervasiveness of fraud, corruption, and self-dealing”); id., at 1403a (“Lay stood proudly in front of Enron’s facade of success, while Skilling and his own prot[égé], [Andrew] Fastow, ginned up increasingly convoluted mechanisms for concealing the financial reality. . . . A court will decide the particulars, but yes, Ken Lay knew”); id., 1406a, 1409a (describing Enron’s collapse as “failure as a result of fraud” and criticizing Skilling for using “vitriol [as] a smokescreen” and “bolting for the door” just before Enron’s stock Cite as: 561 U. S. ____ (2010) 5 Opinion of SOTOMAYOR, J. the coming Skilling/Lay trial as “the main event” and “The Big One,” which would finally bring “the true measure of justice in the Enron saga.” Record 40002; App. 1457a, 1460a.2 On the day the superseding indictment charging Lay was issued, “the Chronicle dedicated three-quarters of its front page, 2 other full pages, and substantial portions of 4 other pages, all in the front or business sections, to th[e] story.” Id., ¶57, at 580a–581a. Citing the widely felt sense of victimhood among Hous­ tonians and the voluminous adverse publicity, Skilling moved in November 2004 for a change of venue.3 The District Court denied the motion, characterizing the media coverage as largely “objective and unemotional.” App. to Brief for United States 11a. Voir dire, it concluded, would provide an effective means to “ferret out any bias” in the jury pool. Id., at 18a; see ante, at 4. To that end, the District Court began the jury selection process by mailing screening questionnaires to 400 pro­ spective jurors in November 2005. The completed ques­ tionnaires of the 283 respondents not excused for hardship dramatically illustrated the widespread impact of Enron’s —————— price plummeted); 3 Supp. Record 1711 (discussing the role of Skilling and Lay in “the granddaddy of all corporate frauds”). 2 According to Skilling’s media expert, local television stations “adopted these same themes” and “dr[o]ve them home through such vivid and repeated visual imagery as replaying footage of Skilling’s . . . ‘perp walk’ when details about Skilling’s upcoming trial [we]re dis­ cussed.” App. ¶65, p. 584a. During arraignment, news outlets “fol­ lowed each man as he drove from his home to FBI headquarters, to the court, and back home, often providing ‘color’ commentary—such as interviewing former Enron employees for comment on the day’s events.” Id., ¶60, at 581a. 3 Reporting on the change-of-venue motion, the Chronicle described Skilling as a “desperate defendant,” and the Austin American- Statesman opined that while a change of venue may make sense “[f]rom a legal perspective,” “from the standpoint of pure justice, the wealthy executives really should be judged right where their economic hurri­ cane struck with the most force.” Id., at 748a, 747a. 6 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. collapse on the Houston community and confirmed the intense animosity of Houstonians toward Skilling and his codefendants. More than one-third of the prospective jurors (approximately 99 of 283, by my count) indicated that they or persons they knew had lost money or jobs as a result of the Enron bankruptcy. Two-thirds of the jurors (about 188 of 283) expressed views about Enron or the defendants that suggested a potential predisposition to convict. In many instances, they did not mince words, describing Skilling as “smug,” “arrogant,” “brash,” “con­ ceited,” “greedy,” “deceitful,” “totally unethical and crimi­ nal,” “a crook,” “the biggest liar on the face of the earth,” and “guilty as sin” (capitalization omitted).4 Only about 5 percent of the prospective jurors (15 of 283) did not read the Houston Chronicle, had not otherwise “heard or read about any of the Enron cases,” Record 13019, were not connected to Enron victims, and gave no answers suggest­ —————— 4 See, e.g., Juror 1 (“Ken Lay and the others are guilty as all get out and ought to go to jail”; Skilling is “[b]rash, [a]rrogant [and] [c]onceited”; “I find it morally awful that these people are still running loose”); Juror 70 (“Mr. Skilling is the biggest liar on the face of the earth”); Juror 163 (Skilling “would lie to his mother if it would further his cause”); Juror 185 (“I think [Skilling] was arrogant and a crook”); Juror 200 (Skilling is a “[s]killful [l]iar [and] crook” who did “a lot of the dirty work”; the defendants would “have to be blind, deaf, [and] stupid to be unaware of what was happening!” (emphasis deleted)); Juror 206 (Skilling is “[t]otally unethical and criminal”; the defendants “are all guilty and should be reduced to having to beg on the corner [and] live under a bridge”); Juror 238 (“They are all guilty as sin—come on now”); Juror 299 (Skilling “initiated, designed, [and] authorized certain illegal actions”); Juror 314 (Lay “should ‘fess up’ and take his punishment like a man”; “[t]he same goes for Jeffrey Skilling. . . . He and his family . . . should be stripped of all of their assets [and] made to start over just like the thousands he made start all over”); Juror 377 (Skilling is “[s]mug,” “[g]reedy,” and “[d]isingenu[ous]”; he “had an active hand in creating and sustaining a fraud”). Defendants’ Renewed Motion for Change of Venue, Record, Doc. 618 (Sealed Exhs.) (hereinafter Skill­ ing’s Renewed Venue Motion); see also App. 794a–797a (summarizing additional responses). Cite as: 561 U. S. ____ (2010) 7 Opinion of SOTOMAYOR, J. ing possible antipathy toward the defendants.5 The par­ ties jointly stipulated to the dismissal of 119 members of the jury pool for cause, hardship, or disability, but numer­ ous individuals who had made harsh comments about Skilling remained.6 On December 28, 2005, shortly after the questionnaires had been returned, Causey pleaded guilty. The plea was covered in lead newspaper and television stories. A front­ page headline in the Chronicle proclaimed that “Causey’s —————— 5 Another 20 percent (about 59 of 283) indicated that they read the Chronicle or had otherwise heard about the Enron cases but did not report that they were victims or make comments suggesting possible bias against the defendants. 6 See, e.g., Juror 29 (Skilling is “[n]ot an honest man”); Juror 104 (Skilling “knows more than he’s admitting”); Juror 211 (“I believe he was involved in wrong doings”); Juror 219 (“So many people lost their life savings because of the dishonesty of some members of the executive team”; Skilling was “[t]oo aggressive w[ith] accounting”); Juror 234 (“With his level of control and power, hard to believe that he was unaware and not responsible in some way”); Juror 240 (Skilling “[s]eems to be very much involved in criminal goings on”); Juror 255 (“[T]housands of people were taken advantage of by executives at Enron”; Skilling is “arrogant”; “Skilling was Andrew Fastow’s immedi­ ate superior. Fastow has plead[ed] guilty to felony charges. I believe Skilling was aware of Fastow’s illegal behavior”); Juror 263 (“Nice try resigning 6 months before the collaps[e], but again, he had to know what was going on”); Juror 272 (Skilling “[k]new he was getting out before the [d]am [b]roke”); Juror 292 (Skilling “[b]ailed out when he knew Enron was going down”); Juror 315 (“[H]ow could they not know and they seem to be lying about some things”); Juror 328 (“They should be held responsible as officers of this company for what happened”); Juror 350 (“I believe he greatly misused his power and affected hun­ dreds of lives as a result”; “I believe they are all guilty. Their ‘doings’ affected not only those employed by Enron but many others as well”); Juror 360 (“I seem to remember him trying to claim to have mental or emotional issues that would remove him from any guilt. I think that is deceitful. It seems as though he is a big player in the downfall”); Juror 378 (“I believe he knew, and certainly should have known as the CEO, that illegal and improper [activities] were rampant in Enron”; “I believe all of them were instrumental, and were co-conspirators, in the massive fraud perpetrated at Enron”). Skilling’s Renewed Venue Motion. 8 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. plea wreaks havoc for Lay, Skilling.” Record 12049, n. 13; see also ibid. (quoting a former U. S. attorney who de­ scribed the plea as “a serious blow to the defense”). A Chronicle editorial opined that “Causey’s admission of securities fraud . . . . makes less plausible Lay’s claim that most of the guilty pleas were the result of prosecutorial pressure rather than actual wrongdoing.” Id., at 12391. With the trial date quickly approaching, Skilling re­ newed his change-of-venue motion, arguing that both the questionnaire responses and the Causey guilty plea con­ firmed that he could not receive a fair trial in Houston. In the alternative, Skilling asserted that “defendants are entitled to a more thorough jury selection process than currently envisioned by the [c]ourt.” Id., at 12067. The court had announced its intention to question individual jurors at the bench with one attorney for each side pre­ sent, and to complete the voir dire in a single day. See, e.g., id., at 11804–11805, 11808. Skilling proposed, inter alia, that defense counsel be afforded a greater role in questioning, id., at 12074; that jurors be questioned pri­ vately in camera or in a closed courtroom where it would be easier for counsel to consult with their colleagues, clients, and jury consultants, id., at 12070–12072; and that the court “avoid leading questions,” which “tend to [e]licit affirmative responses from prospective jurors that may not reflect their actual views,” id., at 12072. At a minimum, Skilling asserted, the court should grant a continuance of at least 30 days and send a revised ques­ tionnaire to a new group of prospective jurors. Id., at 12074–12075. The District Court denied Skilling’s motion without a hearing, stating in a brief order that it was “not persuaded that the evidence or arguments urged by defendants . . . establish that pretrial publicity and/or community preju­ dice raise a presumption of inherent jury prejudice.” Id., at 14115. According to the court, the “jury questionnaires Cite as: 561 U. S. ____ (2010) 9 Opinion of SOTOMAYOR, J. sent to the remaining members of the jury panel and the court’s voir dire examination of the jury panel provide adequate safeguards to defendants and will result in the selection of a fair and impartial jury in this case.” Id., at 14115–14116. The court did agree to delay the trial by two weeks, until January 30, 2006. The coming trial featured prominently in local news outlets. A front-page, eve-of-trial story in the Chronicle described “the hurt and anger and resentment” that had been “churn[ing] inside” Houstonians since Enron’s col­ lapse. Id., at 39946. Again criticizing Lay and Skilling for offering a “doofus defense” (“a plea of not guilty by reason of empty-headedness”), the paper stated that “Lay and Skilling took hundreds of millions in compensation yet now fail to accept the responsibility that went with it.” Ibid. The article allowed that the defendants’ guilt, “though perhaps widely assumed, remains even now an assertion. A jury now takes up the task of deciding whether that assertion is valid.” Id., at 39947. The next paragraph, however, assured readers that “it’s normal for your skin to crawl when Lay or Skilling claim with doe­ eyed innocence that they were unaware that something was amiss at Enron. The company’s utter failure belies the claim.” Ibid. (one paragraph break omitted); see also id., at 39904 (declaring that Lay and Skilling would “have to offer a convincing explanation for how executives once touted as corporate geniuses could be so much in the dark about the illegal activities and deceptive finances of their own company”). It is against this backdrop of widespread community impact and pervasive pretrial publicity that jury selection in Skilling’s case unfolded. Approximately 160 prospective jurors appeared for voir dire at a federal courthouse lo­ cated “about six blocks from Enron’s former headquar­ ters.” 554 F.3d, at 561. Addressing them as a group, the District Court began by briefly describing the case and 10 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. providing a standard admonition about the need to be fair and impartial and to decide the case based solely on the trial evidence and jury instructions. The court then asked whether anyone had “any reservations about your ability to conscientiously and fairly follow these very important rules.” App. 815a. Two individuals raised their hands and were called forward to the bench. One told the court that he thought Lay and Skilling “knew exactly what they were doing” and would have to prove their innocence. Id., at 818a–819a. The second juror, who had stated on his written questionnaire that he held no opinion that would preclude him from being impartial, declared that he “would dearly love to sit on this jury. I would love to claim responsibility, at least 1⁄12 of the responsibility, for putting these sons of bitches away for the rest of their lives.” Id., at 819a–820a. The court excused both jurors for cause. The court proceeded to question individual jurors from the bench. As the majority recounts, ante, at 7–8, the court asked them a few general yes/no questions about their exposure to Enron-related news, often variations of, “Do you recall any particular articles that stand out that you’ve read about the case?” App. 850a. The court also asked about questionnaire answers that suggested bias, focusing mainly on whether, notwithstanding seemingly partial comments, the prospective jurors believed they “could be fair” and “put the government to its proof.” Id., at 852a. Counsel were permitted to follow up on issues raised by the court. The court made clear, however, that its patience would be limited, see, e.g., id., at 879a, and questioning tended to be brief—generally less than five minutes per person. Even so, it exposed disqualifying biases among several prospective jurors who had earlier expressed no concerns about their ability to be fair.7 —————— 7 See App. 894a (Juror 43) (expressed the view that the defendants Cite as: 561 U. S. ____ (2010) 11 Opinion of SOTOMAYOR, J. Once it identified 38 qualified prospective jurors, the court allowed the defense and Government to exercise their allotted peremptory challenges. This left 12 jurors and 4 alternates, who were sworn in and instructed, for the first time, “not [to] read anything dealing with the case or listen to any discussion of the case on radio or television or access any Internet sites that may deal with the case” and to “inform your friends and family members that they should not discuss with you anything they may have read or heard about this case.” Id., at 1026a. Start to finish, the selection process took about five hours. Skilling’s trial commenced the next day and lasted four months. After several days of deliberations, the jury found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of making false representations to audi­ tors, and 1 count of insider trading; it acquitted on 9 in­ sider trading counts. The jury found Lay guilty on all counts. On appeal, Skilling asserted that he had been denied his constitutional right to a fair trial before an impartial jury. Addressing this claim, the Court of Appeals began by disavowing the District Court’s findings concerning “com­ munity hostility.” There was, the court concluded, “suffi­ cient inflammatory pretrial material to require a finding of presumed prejudice, especially in light of the immense volume of coverage.” 554 F.3d, at 559. “[P]rejudice was [also] inherent in an alleged co-conspirator’s well­ —————— “stole money” from their employees); id., at 922a (Juror 55) (admitted that she “lean[ed] towards prejudging” the defendants); id., at 946a (Juror 71) (stated that she would place the burden of proof on the defendants); id., at 954a–960a (Juror 75) (indicated that she could not set aside her view that there was fraud at Enron); id., at 1003a–1006a (Juror 104) (stated that she questioned the defendants’ innocence and that she “would be very upset with the government if they could not prove their case”); id., at 1008a (Juror 112) (expressed that the view that the defendants were guilty). 12 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. publicized decision to plead guilty on the eve of trial.” Ibid. The Court of Appeals, moreover, faulted the District Court for failing to “consider the wider context.” Id., at 560. “[I]t was not enough for the court merely to assess the tone of the news reporting. The evaluation of the volume and nature of reporting is merely a proxy for the real inquiry: whether there could be a fair trial by an impartial jury that was not influenced by outside, irrele­ vant sources.” Ibid. (internal quotation marks omitted). According to the Court of Appeals, “[t]he district court seemed to overlook that the prejudice came from more than just pretrial media publicity, but also from the sheer number of victims.” Ibid. Having determined that “Skilling was entitled to a presumption of prejudice,” the Court of Appeals proceeded to explain that “the presumption is rebuttable, . . . and the government may demonstrate from the voir dire that an impartial jury was actually impanelled.” Id., at 561 (in­ ternal quotation marks omitted). Describing the voir dire as “exemplary,” “searching,” and “proper and thorough,” id., at 562, the court concluded that “[t]he government [had] met its burden of showing that the actual jury that convicted Skilling was impartial,” id., at 564–565. On this basis, the Court of Appeals rejected Skilling’s claim and affirmed his convictions. II The Sixth Amendment right to an impartial jury and the due process right to a fundamentally fair trial guaran­ tee to criminal defendants a trial in which jurors set aside preconceptions, disregard extrajudicial influences, and decide guilt or innocence “based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 723 (1961); see also Sheppard v. Maxwell, 384 U.S. 333, 362 (1966). Community passions, often inflamed by adverse pretrial publicity, can call the integrity of a trial into doubt. In Cite as: 561 U. S. ____ (2010) 13 Opinion of SOTOMAYOR, J. some instances, this Court has observed, the hostility of the community becomes so severe as to give rise to a “pre­ sumption of [juror] prejudice.” Patton v. Yount, 467 U.S. 1025, 1031 (1984). The Court of Appeals incorporated the concept of pre­ sumptive prejudice into a burden-shifting framework: Once the defendant musters sufficient evidence of com­ munity hostility, the onus shifts to the Government to prove the impartiality of the jury. The majority similarly envisions a fixed point at which public passions become so intense that prejudice to a defendant’s fair-trial rights must be presumed. The majority declines, however, to decide whether the presumption is rebuttable, as the Court of Appeals held. This Court has never treated the notion of presumptive prejudice so formalistically. Our decisions instead merely convey the commonsense understanding that as the tide of public enmity rises, so too does the danger that the preju­ dices of the community will infiltrate the jury. The under­ lying question has always been this: Do we have confi­ dence that the jury’s verdict was “induced only by evidence and argument in open court, and not by any outside influ­ ence, whether of private talk or public print”? Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 462 (1907). The inquiry is necessarily case specific. In selecting a jury, a trial court must take measures adapted to the intensity, pervasiveness, and character of the pretrial publicity and community animus. Reviewing courts, meanwhile, must assess whether the trial court’s proce­ dures sufficed under the circumstances to keep the jury free from disqualifying bias. Cf. Murphy v. Florida, 421 U.S. 794, 799 (1975) (scrutinizing the record for “any indications in the totality of circumstances that peti­ tioner’s trial was not fundamentally fair”). This Court’s precedents illustrate the sort of steps required in different 14 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. situations to safeguard a defendant’s constitutional right to a fair trial before an impartial jury. At one end of the spectrum, this Court has, on rare occasion, confronted such inherently prejudicial circum­ stances that it has reversed a defendant’s conviction “without pausing to examine . . . the voir dire examination of the members of the jury.” Rideau v. Louisiana, 373 U.S. 723, 727 (1963). In Rideau, repeated television broadcasts of the defendant’s confession to murder, rob­ bery, and kidnaping so thoroughly poisoned local senti­ ment as to raise doubts that even the most careful voir dire could have secured an impartial jury. A change of venue, the Court determined, was thus the only way to assure a fair trial. Ibid.; see also 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §23.2(a), p. 264 (3d ed. 2007) (hereinafter LaFave) (“The best reading of Rideau is that the Court there recognized that prejudicial publicity may be so inflammatory and so pervasive that the voir dire simply cannot be trusted to fully reveal the likely prejudice among prospective jurors”). As the majority describes, ante, at 14, this Court reached similar conclusions in Estes v. Texas, 381 U.S. 532 (1965), and Sheppard, 384 U.S. 333. These cases involved not only massive pretrial publicity but also media disruption of the trial process itself. Rejecting the argu­ ment that the defendants were not entitled to relief from their convictions because they “ha[d] established no isola­ table prejudice,” the Court described the “untoward cir­ cumstances” as “inherently suspect.” Estes, 381 U.S., at 542, 544. It would have been difficult for the jurors not to have been swayed, at least subconsciously, by the “bed­ lam” that surrounded them. Sheppard, 384 U.S., at 355. Criticizing the trial courts’ failures “to protect the jury from outside influence,” id., at 358, the Court stressed that, “where there is a reasonable likelihood that prejudi­ cial news prior to trial will prevent a fair trial, the judge Cite as: 561 U. S. ____ (2010) 15 Opinion of SOTOMAYOR, J. should continue the case until the threat abates, or trans­ fer it to another [venue] not so permeated with publicity.” Id., at 363. Estes and Sheppard thus applied Rideau’s insight that in particularly extreme circumstances even the most rigorous voir dire cannot suffice to dispel the reasonable likelihood of jury bias. Apart from these exceptional cases, this Court has declined to discount voir dire entirely and has instead examined the particulars of the jury selection process to determine whether it sufficed to produce a jury untainted by pretrial publicity and community animus. The Court has recognized that when antipathy toward a defendant pervades the community there is a high risk that biased jurors will find their way onto the panel. The danger is not merely that some prospective jurors will deliberately hide their prejudices, but also that, as “part of a commu­ nity deeply hostile to the accused,” “they may unwittingly [be] influenced” by the fervor that surrounds them. Mur phy, 421 U.S., at 803. To assure an impartial jury in such adverse circumstances, a trial court must carefully con­ sider the knowledge and attitudes of prospective jurors and then closely scrutinize the reliability of their assur­ ances of fairness. Cf. Morgan v. Illinois, 504 U.S. 719, 729 (1992) (“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors”). Irvin offers an example of a case in which the trial court’s voir dire did not suffice to counter the “wave of public passion” that had swept the community prior to the defendant’s trial. 366 U.S., at 728. The local news media had “extensively covered” the crimes (a murder spree), “arous[ing] great excitement and indignation.” Id., at 719 (internal quotation marks omitted). Following Irvin’s arrest, the press “blanketed” the community with “a bar­ rage of newspaper headlines, articles, cartoons and pic­ tures” communicating numerous unfavorable details about 16 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. Irvin, including that he had purportedly confessed. Id., at 725. Nearly 90 percent of the 430 prospective jurors ex­ amined during the trial court’s voir dire “entertained some opinion as to guilt—ranging in intensity from mere suspi­ cion to absolute certainty.” Id., at 727. Of the 12 jurors seated, 8 “thought petitioner was guilty,” although “each indicated that notwithstanding his opinion he could ren­ der an impartial verdict.” Id., at 727, 724. Despite the seated jurors’ assurances of impartiality, this Court invalidated Irvin’s conviction for want of due process. “It is not required,” this Court declared, “that the jurors be totally ignorant of the facts and issues involved. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Id., at 722–723. The Court empha­ sized, however, that a juror’s word on this matter is not decisive, particularly when “the build-up of prejudice [in the community] is clear and convincing.” Id., at 725. Many of Irvin’s jurors, the Court noted, had been influ­ enced by “the pattern of deep and bitter prejudice shown to be present throughout the community.” Id., at 727 (internal quotation marks omitted). The Court did not “doubt [that] each juror was sincere when he said that he would be fair and impartial to [Irvin], but . . . [w]here so many, so many times, admitted prejudice, such a state­ ment of impartiality can be given little weight.” Id., at 728. The media coverage and community animosity in Irvin was particularly intense. In three subsequent cases, this Court recognized that high-profile cases may generate substantial publicity without stirring similar public pas­ sions. The jury selection process in such cases, the Court clarified, generally need not be as exhaustive as in a case such as Irvin. So long as the trial court conducts a rea­ sonable inquiry into extrajudicial influences and the abil­ ity of prospective jurors to presume innocence and render Cite as: 561 U. S. ____ (2010) 17 Opinion of SOTOMAYOR, J. a verdict based solely on the trial evidence, we would generally have no reason to doubt the jury’s impartiality.8 The first of these cases, Murphy, 421 U.S. 794, involved a well-known defendant put on trial for a widely publi­ cized Miami Beach robbery. The state trial court denied his motion for a change of venue and during voir dire excused 20 of the 78 prospective jurors for cause. Distin­ guishing Irvin, this Court saw no indication in the voir dire of “such hostility to [Murphy] by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” 421 U.S., at 800. Although some jurors “had a vague recollection of the robbery with which [Mur­ phy] was charged and each had some knowledge of [his] past crimes,” “none betrayed any belief in the relevance of [Murphy’s] past to the present case.” Ibid.; see also ibid., n. 4 (contrasting a juror’s “mere familiarity with [a defen­ dant] or his past” with “an actual predisposition against him”). “[T]hese indicia of impartiality,” the Court sug­ gested, “might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory, but the circumstances surrounding [Mur­ phy’s] trial [were] not at all of that variety.” Id., at 802. In a second case, Yount, 467 U.S. 1025, the defendant was granted a new trial four years after being convicted of murder. He requested a change of venue, citing pretrial publicity and the widespread local knowledge that he had previously been convicted and had made confessions that would be inadmissible in court. The state trial court denied Yount’s motion and seated a jury following a 10­ day voir dire of 292 prospective jurors. Nearly all of the —————— 8 Of course, even if the jury selection process is adequate, a trial court violates a defendant’s right to an impartial jury if it erroneously denies a for-cause challenge to a biased venire member who ultimately sits on the jury. See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 316 (2000) (“[T]he seating of any juror who should have been dismissed for cause . . . would require reversal”). 18 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. prospective jurors had heard of the case, and 77 percent “admitted they would carry an opinion into the jury box.” Id., at 1029. Declining to grant relief on federal habeas review, this Court stressed the significant interval be­ tween Yount’s first trial—when “adverse publicity and the community’s sense of outrage were at their height”—and his second trial, which “did not occur until four years later, at a time when prejudicial publicity was greatly dimin­ ished and community sentiment had softened.” Id., at 1032. While 8 of the 14 seated jurors and alternates had “at some time . . . formed an opinion as to Yount’s guilt,” the “particularly extensive” voir dire confirmed that “time had weakened or eliminated any” bias they once may have harbored. Id., at 1029–1030, 1034, n. 10, 1033. Accord­ ingly, this Court concluded, “the trial court did not commit manifest error in finding that the jury as a whole was impartial.” Id., at 1032. This Court most recently wrestled with the issue of pretrial publicity in Mu’Min v. Virginia, 500 U.S. 415 (1991). Mu’Min stood accused of murdering a woman while out of prison on a work detail. Citing 47 newspaper articles about the crime, Mu’Min moved for a change of venue. The state trial court deferred its ruling and at­ tempted to seat a jury. During group questioning, 16 of the 26 prospective jurors indicated that they had heard about the case from media or other sources. Dividing these prospective jurors into panels of four, the court asked further general questions about their ability to be fair given what they had heard or read. One juror an­ swered equivocally and was dismissed for cause. The court refused Mu’Min’s request to ask more specific ques­ tions “relating to the content of news items that potential jurors might have read or seen.” Id., at 419. Of the 12 persons who served on the jury, “8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the Cite as: 561 U. S. ____ (2010) 19 Opinion of SOTOMAYOR, J. case or would be biased in any way.” Id., at 421. Rejecting Mu’Min’s attempt to analogize his case to Irvin, this Court observed that “the cases differ both in the kind of community in which the coverage took place and in extent of media coverage.” 500 U.S., at 429. Mu’Min’s offense occurred in the metropolitan Washington, D. C., area, “which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year.” Ibid. While the crime garnered “substantial” pretrial publicity, the coverage was not as pervasive as in Irvin and “did not contain the same sort of damaging information.” 500 U.S., at 429–430. Moreover, in con­ trast to Irvin, the seated jurors uniformly disclaimed having ever formed an opinion about the case. Given these circumstances, this Court rebuffed Mu’Min’s asser­ tion that the trial court committed constitutional error by declining to “make precise inquiries about the contents of any news reports that potential jurors have read.” 500 U.S., at 424. The Court stressed, however, that its ruling was context-specific: “Had the trial court in this case been confronted with the ‘wave of public passion’ engendered by pretrial publicity that occurred in connection with Irvin’s trial, the Due Process Clause of the Fourteenth Amend­ ment might well have required more extensive examina­ tion of potential jurors than it undertook here.” Id., at 429. III It is necessary to determine how this case compares to our existing fair-trial precedents. Were the circumstances so inherently prejudicial that, as in Rideau, even the most scrupulous voir dire would have been “but a hollow formal­ ity” incapable of reliably producing an impartial jury? 373 U.S., at 726. If the circumstances were not of this charac­ ter, did the District Court conduct a jury selection process sufficiently adapted to the level of pretrial publicity and 20 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. community animus to ensure the seating of jurors capable of presuming innocence and shutting out extrajudicial influences? A Though the question is close, I agree with the Court that the prospect of seating an unbiased jury in Houston was not so remote as to compel the conclusion that the District Court acted unconstitutionally in denying Skilling’s mo­ tion to change venue. Three considerations lead me to this conclusion. First, as the Court observes, ante, at 16, the size and diversity of the Houston community make it probable that the jury pool contained a nontrivial number of persons who were unaffected by Enron’s collapse, neu­ tral in their outlook, and unlikely to be swept up in the public furor. Second, media coverage of the case, while ubiquitous and often inflammatory, did not, as the Court points out, ante, at 17, contain a confession by Skilling or similar “smoking-gun” evidence of specific criminal acts. For many prospective jurors, the guilty plea of codefen­ dant and alleged co-conspirator Causey, along with the pleas and convictions of other Enron executives, no doubt suggested guilt by association. But reasonable minds exposed to such information would not necessarily have formed an indelible impression that Skilling himself was guilty as charged. Cf. Rideau, 373 U.S., at 726 (a major­ ity of the county’s residents were “exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged”). Third, there is no suggestion that the court­ room in this case became, as in Estes and Sheppard, a “carnival” in which the “calmness and solemnity” of the proceedings was compromised. Sheppard, 384 U.S., at 358, 350 (internal quotation marks omitted). It is thus appropriate to examine the voir dire and determine whether it instills confidence in the impartiality of the Cite as: 561 U. S. ____ (2010) 21 Opinion of SOTOMAYOR, J. jury actually selected.9 B In concluding that the voir dire “adequately detect[ed] and defuse[d] juror bias,” ante, at 20, the Court downplays the extent of the community’s antipathy toward Skilling and exaggerates the rigor of the jury selection process. The devastating impact of Enron’s collapse and the relent­ less media coverage demanded exceptional care on the part of the District Court to ensure the seating of an im­ partial jury. While the procedures employed by the Dis­ trict Court might have been adequate in the typical high­ profile case, they did not suffice in the extraordinary circumstances of this case to safeguard Skilling’s constitu­ tional right to a fair trial before an impartial jury. —————— 9 Whether the District Court abused its discretion in declining to change venue pursuant to the Federal Rules of Criminal Procedure is a different question. See Fed. Rule Crim. Proc. 21(a) (“Upon the defen­ dant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there”). As this Court has indicated, its supervisory powers confer “more latitude” to set standards for the conduct of trials in federal courts than in state courts. Mu’Min v. Virginia, 500 U.S. 415, 424 (1991). While the circumstances may not constitutionally compel a change of venue “without pausing to examine . . . the voir dire,” Rideau v. Louisiana, 373 U.S. 723, 727 (1963), the widely felt sense of victimhood among Houstonians and the community’s deep-seated animus toward Skilling certainly meant that the task of reliably identifying untainted jurors posed a major chal­ lenge, with no guarantee of success. It likely would have been far easier to empanel an impartial jury in a venue where the Enron story had less salience. I thus agree with the Court of Appeals that “[i]t would not have been imprudent for the [District] [C]ourt to have granted Skilling’s transfer motion.” 554 F.3d 529, 558 (CA5 2009). Skilling, however, likely forfeited any Rule 21 or supervisory powers claim by failing to present it either in his opening brief before the Fifth Circuit, see id., at 559, n. 39, or in his petition for certiorari, cf. ante, at 12, n. 11. 22 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. In conducting this analysis, I am mindful of the “wide discretion” owed to trial courts when it comes to jury­ related issues. Mu’Min, 500 U.S., at 427; cf. ante, at 20– 21. Trial courts are uniquely positioned to assess public sentiment and the credibility of prospective jurors. Prox­ imity to events, however, is not always a virtue. Persons in the midst of a tumult often lack a panoramic view. “[A]ppellate tribunals [thus] have the duty to make an independent evaluation of the circumstances.” Sheppard, 384 U.S., at 362. In particular, reviewing courts are well qualified to inquire into whether a trial court implemented procedures adequate to keep community prejudices from infecting the jury. If the jury selection process does not befit the circumstances of the case, the trial court’s rulings on impartiality are necessarily called into doubt. See Morgan, 504 U.S., at 729–730 (“ ‘Without an adequate voir dire the trial judge’s responsibility to remove prospec­ tive jurors who will not be able impartially to follow the court’s instructions and evaluate the evidence cannot be fulfilled’ ” (quoting Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality opinion))); see also Mu’Min, 500 U.S., at 451 (KENNEDY, J., dissenting) (“Our willingness to accord substantial deference to a trial court’s finding of juror impartiality rests on our expecta­ tion that the trial court will conduct a sufficient voir dire to determine the credibility of a juror professing to be impartial”). 1 As the Court of Appeals apprehended, the District Court gave short shrift to the mountainous evidence of public hostility. For Houstonians, Enron’s collapse was an event of once-in-a-generation proportions. Not only was the volume of media coverage “immense” and frequently in­ temperate, but “the sheer number of victims” created a climate in which animosity toward Skilling ran deep and Cite as: 561 U. S. ____ (2010) 23 Opinion of SOTOMAYOR, J. the desire for conviction was widely shared. 554 F.3d, at 559–560. The level of public animus toward Skilling dwarfed that present in cases such as Murphy and Mu’Min. The pre­ trial publicity in those cases consisted of dozens of news reports, most of which were “largely factual in nature.” Murphy, 421 U.S., at 802. There was no indication that the relevant communities had been captivated by the cases or had adopted fixed views about the defendants. In contrast, the number of media reports in this case reached the tens of thousands, and full-throated denunciations of Skilling were common. The much closer analogy is thus to Irvin, which similarly featured a “barrage” of media cover­ age and a “huge . . . wave of public passion,” 366 U.S., at 725, 728, although even that case did not, as here, involve direct harm to entire segments of the community.10 Attempting to distinguish Irvin, the majority suggests that Skilling’s economic offenses were less incendiary than Irvin’s violent crime spree and that “news stories about Enron contained nothing resembling the horrifying infor­ mation rife in reports about Irvin’s rampage of robberies and murders.” Ante, at 28. Along similar lines, the Dis­ trict Court described “the facts of this case [as] neither heinous nor sensational.” App. to Brief for United States 10a. The majority also points to the four years that passed between Enron’s declaration of bankruptcy and the start of Skilling’s trial, asserting that “the decibel level of media attention diminished somewhat” over this time. Ante, at 17. Neither of these arguments is persuasive. First, while violent crimes may well provoke widespread community outrage more readily than crimes involving monetary loss, economic crimes are certainly capable of —————— 10 One of Skilling’s experts noted that, “[i]n cases involving 200 or more articles, trial judges granted a change of venue 59% of the time.” App. ¶30, p. 611a. 24 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. rousing public passions, particularly when thousands of unsuspecting people are robbed of their livelihoods and retirement savings. Indeed, the record in this case is replete with examples of visceral outrage toward Skilling and other Enron executives. See, e.g., Record 39946 (front-page, eve-of-trial story describing “the hurt and anger and resentment . . . churn[ing] inside” the people of Houston). Houstonians compared Skilling to, among other things, a rapist, an axe murderer, and an Al Qaeda terror­ ist.11 As one commentator observed, “[i]t’s a sign of how shocked Houstonians are about Enron’s ignominious demise that Sept. 11 can be invoked—and is frequently— to explain the shock of the company’s collapse.” 3 Supp. Record 544. The bad blood was so strong that Skilling and other top executives hired private security to protect themselves from persons inclined to take the law into their own hands. See, e.g., App. 1154a (“After taking the tem­ perature of Enron’s victims, [a local lawyer] says the Enron executives are wise to take security precautions”). Second, the passage of time did little to soften commu­ nity sentiment. Contrary to the Court’s suggestion, ante, at 17, this case in no way resembles Yount, where, by the time of the defendant’s retrial, “prejudicial publicity [had] greatly diminished” and community animus had signifi­ —————— 11 See, e.g., 554 F.3d, at 559, n. 42 (“I’m livid, absolutely livid . . . . I have lost my entire friggin’ retirement to these people. They have raped all of us” (internal quotation marks omitted)); App. 382a (“Hurt­ ing that many elderly people so severely is, I feel, the equivalent of being an axe murderer. His actions were just as harmful as an axe murderer to the [community]” (alteration in original)); id., at 1152a– 1153a (“Not having the stuff of suicide bombers, Enron’s executive pilots took full advantage of golden parachutes to bail out of their high­ flying corporate jet after setting the craft on a course to financial oblivion. In a business time frame, Enron pancaked faster than the twin towers”); id., at 1163a (noting that “Skilling’s picture turned up alongside Osama bin Laden’s on ‘Wanted’ posters inside the company headquarters”). Cite as: 561 U. S. ____ (2010) 25 Opinion of SOTOMAYOR, J. cantly waned. 467 U.S., at 1032; see also ibid. (in the months preceding the defendant’s retrial, newspaper reports about the case averaged “less than one article per month,” and public interest was “minimal”). The Enron story was a continuing saga, and “publicity remained intense throughout.” 554 F.3d, at 560. Not only did Enron’s downfall generate wall-to-wall news coverage, but so too did a succession of subsequent Enron-related events.12 Of particular note is the highly publicized guilty plea of codefendant Causey just weeks before Skilling’s trial. If anything, the time that elapsed between the bankruptcy and the trial made the task of seating an unbiased jury more difficult, not less. For many members of the jury pool, each highly publicized Enron-related guilty plea or conviction likely served to increase their certainty that Skilling too had engaged in—if not master­ minded—criminal acts, particularly given that the media —————— 12 Among the highlights: In 2002, Skilling testified before Congress, and other Enron executives invoked their Fifth Amendment rights; Enron auditor Arthur Andersen was indicted, tried, convicted, and sentenced on charges of obstruction of justice; the Enron Task Force charged Enron CFO and Skilling-protégé Andrew Fastow with fraud, money laundering, and other crimes; and at least two Enron employees pleaded guilty on fraud and tax charges. In 2003, the Enron Task Force indicted numerous Enron employees, including Ben Glisan, Jr. (the company’s treasurer), Lea Fastow (wife of Andrew and an assistant treasurer), and more than half a dozen executives of Enron Broadband Services; several Enron employees entered guilty pleas and received prison sentences; and Enron filed its bankruptcy reorganization plan. In 2004, Andrew and Lea Fastow both pleaded guilty; Skilling and Causey were indicted in February; a superseding indictment adding Lay was filed in July; a number of additional Enron employees entered guilty pleas; and former Enron employees and Merrill Lynch bankers were defendants in a 6-week trial in Houston concerning an Enron deal involving the sale of Nigerian barges. In 2005, a 3-month trial was held in Houston for five executives of Enron Broadband Services; various pretrial proceedings occurred in the run up to the trial of Skilling, Lay, and Causey; and, three weeks before the scheduled trial date, Causey pleaded guilty to securities fraud. 26 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. coverage reinforced this view. See supra, at 7–8. The trial of Skilling and Lay was the culmination of all that had come before. See Record 40002 (noting that “prosecutors followed the classic pattern of working their way up through the ranks”). As the Chronicle put it in July 2005, shortly after the trial of several Enron Broadband Services executives ended without convictions, “The real trial, the true measure of justice in the Enron saga, begins in Janu­ ary. Let the small fry swim free if need be. We’ve got bigger fish in need of frying.” App. 1460a (paragraph breaks omitted); see also ibid. (“From the beginning, the Enron prosecution has had one true measure of success: Lay and Skilling in a cold steel cage”). Any doubt that the prevailing mindset in the Houston community remained overwhelmingly negative was dis­ pelled by prospective jurors’ responses to the written questionnaires. As previously indicated, supra, at 5–7, more than one-third of the prospective jurors either knew victims of Enron’s collapse or were victims themselves, and two-thirds gave responses suggesting an antidefen­ dant bias. In many instances their contempt for Skilling was palpable. See nn. 4, 6, supra. Only a small fraction of the prospective jurors raised no red flags in their re­ sponses. And this was before Causey’s guilty plea and the flurry of news reports that accompanied the approach of trial. One of Skilling’s experts, a political scientist who had studied pretrial publicity “for over 35 years” and consulted in more than 200 high-profile cases (in which he had recommended against venue changes more often than not), “c[a]me to the conclusion that the extent and depth of bias shown in these questionnaires is the highest or at least one of the very highest I have ever encountered.” App. ¶¶2, 7, pp. 783a, 785a (emphasis deleted). 2 Given the extent of the antipathy evident both in the Cite as: 561 U. S. ____ (2010) 27 Opinion of SOTOMAYOR, J. community at large and in the responses to the written questionnaire, it was critical for the District Court to take “strong measures” to ensure the selection of “an impartial jury free from outside influences.” Sheppard, 384 U.S., at 362. As this Court has recognized, “[i]n a community where most veniremen will admit to a disqualifying preju­ dice, the reliability of the others’ protestations may be drawn into question.” Murphy, 421 U.S., at 803; see also Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) (“ ‘[A]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the envi­ roning atmosphere’ ” (quoting Frank v. Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting))). Perhaps be­ cause it had underestimated the public’s antipathy toward Skilling, the District Court’s 5-hour voir dire was mani­ festly insufficient to identify and remove biased jurors.13 As an initial matter, important lines of inquiry were not —————— 13 The majority points out that the jury selection processes in the three previous Enron trials that had been held in Houston were simi­ larly brief. See ante, at 23. The circumstances of those cases, however, were very different. In particular, the defendants had not been person­ ally subjected to anything approaching the withering public criticism that had been directed at Skilling and Lay. As earlier noted, see, e.g., supra, at 25–26, it was the trial of Skilling and Lay that was widely seen as the climactic event of the Enron saga. Accordingly, my conclu­ sion that the jury selection process in this unusual case did not suffice to select an impartial jury does not cast doubt on the adequacy of the processes used in the earlier Enron prosecutions. Moreover, in referencing the length of the voir dire in this case, I do not mean to suggest that length should be a principal measure of the adequacy of a jury selection process. Trial courts, including this one, should be commended for striving to be efficient, but they must always take care to ensure that their expeditiousness does not compromise a defendant’s fair-trial right. I also express no view with respect to court­ led versus attorney-led voir dire. Federal Rule of Criminal Procedure 24(a) gives district courts discretion to choose between these options, and I have no doubt that either is capable of producing an impartial jury even in high profile cases so long as the trial court assures that the scope of the voir dire is tailored to the circumstances. 28 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. pursued at all. The majority accepts, for instance, that “publicity about a codefendant’s guilty plea calls for in­ quiry to guard against actual prejudice.” Ante, at 19. Implying that the District Court undertook this inquiry, the majority states that “[o]nly two venire members re­ called [Causey’s] plea.” Ibid. In fact, the court asked very few prospective jurors any questions directed to their knowledge of or feelings about that event.14 Considering how much news the plea generated, many more than two venire members were likely aware of it. The lack of ques­ tioning, however, makes the prejudicial impact of the plea on those jurors impossible to assess. The court also rarely asked prospective jurors to de­ scribe personal interactions they may have had about the case, or to consider whether they might have difficulty avoiding discussion of the case with family, friends, or colleagues during the course of the lengthy trial. The tidbits of information that trickled out on these subjects provided cause for concern. In response to general media­ related questions, several prospective jurors volunteered that they had spoken with others about the case. Juror 74, for example, indicated that her husband was the “news person,” that they had “talked about it,” that she had also heard things “from work,” and that what she heard was “all negative, of course.” App. 948a. The court, however, did not seek elaboration about the substance of these interactions. Surely many prospective jurors had similar —————— 14 Juror 33 brought up the plea in response to the District Court’s question about whether he “recall[ed] listening to any particular programs about the case.” App. 888a. Juror 96, meanwhile, told the court that he read the “whole” Houston Chronicle every day, including “all the articles about Enron.” Id., at 992a. The court, however, did not ask any questions designed to elicit information about the Causey plea. Instead, Juror 96 remarked on the plea only after Skilling’s counsel managed to squeeze in a follow-up as to whether he had “read about any guilty pleas in this case over the last month or two.” Id., at 993a. Cite as: 561 U. S. ____ (2010) 29 Opinion of SOTOMAYOR, J. conversations, particularly once they learned upon receiv­ ing the written questionnaire that they might end up on Skilling’s jury. Prospective jurors’ personal interactions, moreover, may well have left them with the sense that the community was counting on a conviction. Yet this too was a subject the District Court did not adequately explore. On the few occasions when prospective jurors were asked whether they would feel pressure from the public to convict, they acknowledged that it might be difficult to return home after delivering a not-guilty verdict. Juror 75, for in­ stance, told the court, “I think a lot of people feel that they’re guilty. And maybe they’re expecting something to come out of this trial.” Id., at 956a. It would be “tough,” she recognized, “to vote not guilty and go back into the community.” Id., at 957a; see also id., at 852a (Juror 10) (admitting “some hesitancy” about “telling people the government didn’t prove its case”). With respect to potential nonmedia sources of bias, the District Court’s exchange with Juror 101 is particularly troubling.15 Although Juror 101 responded in the negative when asked whether she had “read anything in the news­ paper that [stood] out in [her] mind,” she volunteered that she “just heard that, between the two of them, [Skilling and Lay] had $43 million to contribute for their case and that there was an insurance policy that they could collect on, also.” Id., at 998a. This information, she explained, “was just something I overheard today—other jurors talking.” Ibid. It seemed suspicious, she intimated, “to have an insurance policy ahead of time.” Id., at 999a. The court advised her that “most corporations provide insur­ ance for their officers and directors.” Ibid. The court, however, did not investigate the matter further, even —————— 15 Portions of the voir dire transcript erroneously refer to this pro­ spective juror as “Juror 110.” See, e.g., id., at 996a. 30 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. though it had earlier instructed prospective jurors not to talk to each other about the case. Id., at 843a. It is thus not apparent whether other prospective jurors also over­ heard the information and whether they too believed that it reflected unfavorably on the defendants; nor is it appar­ ent what other outside information may have been shared among the venire members. At the very least, Juror 101’s statements indicate that the court’s questions were failing to bring to light the extent of jurors’ exposure to poten­ tially prejudicial facts and that some prospec- tive jurors were having difficulty following the court’s directives. The topics that the District Court did cover were ad­ dressed in cursory fashion. Most prospective jurors were asked just a few yes/no questions about their general exposure to media coverage and a handful of additional questions concerning any responses to the written ques­ tionnaire that suggested bias. In many instances, their answers were unenlightening.16 Yet the court rarely sought to draw them out with open-ended questions about their impressions of Enron or Skilling and showed limited patience for counsel’s followup efforts. See, e.g., id., at —————— 16 Thecourt’s exchange with Juror 20 (who sat on the jury) is typical: “Q. Do you remember reading any particular articles about this case or Mr. Lay or Mr. Skilling? “A. Not until just recently this week, but nothing— “Q. And there have been a lot of articles this week. “A. Yeah. “Q. Do you recall any particular articles you’ve read in the last week or so? “A. Not word for word, no. “Q. Did you read all the articles in the Sunday “Chronicle”? “A. Some of them. “Q. Which ones do you remember reading? “A. The one about the trial, I think, and how the trial was going to work.” Id., at 873a–874a. Cite as: 561 U. S. ____ (2010) 31 Opinion of SOTOMAYOR, J. 879a, 966a.17 When prospective jurors were more forth­ coming, their responses tended to highlight the ubiquity and negative tone of the local news coverage, thus under­ scoring the need to press the more guarded members of the venire for further information.18 Juror 17, for exam­ ple, mentioned hearing a radio program that very morning in which a former Enron employee compared persons who did not think Skilling was guilty to Holocaust deniers. See id., at 863a (“[H]e said he thought that he would find them guilty automatically if he was on the jury because he said that it would be worse than a German trying to say that they didn’t kill the Jews”).19 Other jurors may well have encountered, and been influenced by, similarly incendiary rhetoric. These deficiencies in the form and content of the voir —————— 17 The majority’s criticism of Skilling’s counsel for failing to ask ques­ tions of many of the prospective jurors, cf. ante, at 23–24, is thus misplaced. Given the District Court’s express warning early in the voir dire that it would not allow counsel “to ask individual questions if [they] abuse[d]” that right, App. 879a, counsel can hardly be blamed for declining to test the court’s boundaries at every turn. Moreover, the court’s perfunctory exchanges with prospective jurors often gave counsel no clear avenue for further permissible inquiry. 18 Although the District Court underestimated the extent of the com­ munity hostility, it was certainly aware of the ubiquity of the pretrial publicity, acknowledging that “all of us have been exposed to substan­ tial media attention about this case.” Id., at 841a. The court even made an offhand remark about one of the prior Enron prosecutions, “the Nigerian barge case,” apparently expecting that the prospective jurors would understand the reference. Id., at 840a. 19 Taking a more defendant-favorable line than most prospective ju­ rors, Juror 17 stated that he “thought the guy [on the radio] was pretty narrow minded,” that “everyone should be considered innocent totally until they get a chance to come [to] court,” and that the Government might have been overzealous in some of its Enron-related prosecutions. Id., at 863a–864a. He added, however, that he “believe[d] there was probably some accounting fraud [at Enron].” Id., at 864a. The District Court denied the Government’s request to remove Juror 17 for cause, but he did not ultimately sit on the jury. 32 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. dire questions contributed to a deeper problem: The Dis­ trict Court failed to make a sufficiently critical assessment of prospective jurors’ assurances of impartiality. Although the Court insists otherwise, ante, at 26, the voir dire tran­ script indicates that the District Court essentially took jurors at their word when they promised to be fair. In­ deed, the court declined to dismiss for cause any prospec­ tive juror who ultimately gave a clear assurance of impar­ tiality, no matter how much equivocation preceded it. Juror 29, for instance, wrote on her questionnaire that Skilling was “not an honest man.” App. 881a. During questioning, she acknowledged having previously thought the defendants were guilty, and she disclosed that she lost $50,000–$60,000 in her 401(k) as a result of Enron’s col­ lapse. Id., at 880a, 883a. But she ultimately agreed that she would be able to presume innocence. Id., at 881a, 884a. Noting that she “blame[d] Enron for the loss of her money” and appeared to have “unshakeable bias,” Skill­ ing’s counsel challenged her for cause. Id., at 885a. The court, however, declined to remove her, stating that “she answered candidly she’s going to have an open mind now” and “agree[ing]” with the Government’s assertion that “we have to take her at her word.” Id., at 885a–886a.20 As —————— 20 The majority attempts to downplay the significance of Juror 29 by noting that she did not end up on the jury because Skilling used a peremptory challenge to remove her. See ante, at 30, n. 32. The majority makes a similar point with respect to other venire members who were not ultimately seated. See ante, at 24, n. 24. The comments of these venire members, however, are relevant in assessing the impar­ tiality of the seated jurors, who were similarly “part of a community deeply hostile to the accused” and who may have been “unwittingly influenced by it.” Murphy v. Florida, 421 U.S. 794, 803 (1975); see also Irvin v. Dowd, 366 U.S. 717, 728 (1961). Moreover, the fact that the District Court failed to remove persons as dubiously qualified as Juror 29 goes directly to the adequacy of its voir dire. If Juror 29 made it through to the end of the selection process, it is difficult to have confi­ dence in the impartiality of the jurors who sat, especially given how Cite as: 561 U. S. ____ (2010) 33 Opinion of SOTOMAYOR, J. this Court has made plain, jurors’ assurances of impartial­ ity simply are not entitled to this sort of talismanic signifi­ cance. See, e.g., Murphy, 421 U.S., at 800 (“[T]he juror’s assurances that he is equal to th[e] task cannot be disposi­ tive of the accused’s rights”); Irvin, 366 U.S., at 728 (“Where so many, so many times, admi[t] prejudice, . . . a statement of impartiality can be given little weight”). Worse still, the District Court on a number of occasions accepted declarations of impartiality that were equivocal on their face. Prospective jurors who “hope[d]” they could presume innocence and did “not necessarily” think Skill­ ing was guilty were permitted to remain in the pool. App. 932a, 857a. Juror 61, for instance, wrote of Lay on her questionnaire, “Shame on him.” Id., at 931a. Asked by the court about this, she stated that, “innocent or guilty, he was at the helm” and “should have known what was going on at the company.” Ibid.; see also id., at 934a (Skilling is “probably” “in the same boat as” Lay). The court then asked, “can you presume, as you start this trial, that Mr. Lay is innocent?” Id., at 932a. She responded, “I hope so, but you know. I don’t know. I can’t honestly answer that one way or the other.” Ibid.; see also id., at 933a (“I bring in my past history. I bring in my biases. I would like to think I could rise above those, but I’ve never been in this situation before. So I don’t know how I could honestly answer that question one way or the other. . . . I do have some concerns”). Eventually, however, Juror 61 answered “Yes” when the court asked if she would be able to acquit if she had “a reasonable doubt that the defen­ dants are guilty.” Id., at 933a–934a. Challenging her for cause, defense counsel insisted that they had not received “a clear and unequivocal answer” about her ability to be —————— little is known about many of them. Cf. 6 LaFave §23.2(f), at 288 (“The responses of those not seated casts light on the credibility of the seated jurors who were familiar with the same publicity”). 34 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. fair. Ibid. The court denied the challenge, stating, “You know, she tried.” Ibid. 3 The majority takes solace in the fact that most of the persons actually seated as jurors and alternates “specifi­ cally stated that they had paid scant attention to Enron­ related news.” Ante, at 24–25, and n. 26.21 In context, however, these general declarations reveal little about the seated jurors’ actual knowledge or views or the possible pressure they might have felt to convict, and thus cannot instill confidence that the jurors “were not under [the] sway” of the prevailing community sentiment. Cf. ante, at 25. Jurors who did not “get into details” of Enron’s com­ plicated accounting schemes, App. 856a, nevertheless knew the outline of the oft-repeated story, including that Skilling and Lay had been cast as the leading villains. Juror 63, for instance, told the court that she “may have heard a little bit” about Enron-related litigation but had not “really pa[id] attention.” Id., at 935a. Yet she was clearly aware of some specifics. On her questionnaire, despite stating that she had not followed Enron-related news, she wrote about “whistleblowers and Arthur Ander­ sen lying about Enron’s accounting,” and she expressed the view that Skilling and Lay “probably knew they were breaking the law.” Supp. App. 105sa–106sa. During questioning, which lasted barely four minutes, the District Court obtained no meaningful information about the actual extent of Juror 63’s familiarity with the case or the basis for her belief in Skilling’s guilt. Yet it nevertheless —————— 21 The majority also notes that about two-thirds of the seated jurors and alternates (11 of 16) had no personal Enron connection. Ante, at 24, and n. 25. This means, of course, that five of the seated jurors and alternates did have connections to friends or colleagues who had lost jobs or money as a result of Enron’s collapse—a fact that does not strike me as particularly reassuring. Cite as: 561 U. S. ____ (2010) 35 Opinion of SOTOMAYOR, J. accepted her assurance that she could “absolutely” pre­ sume innocence. App. 937a.22 Indeed, the District Court’s anemic questioning did little to dispel similar doubts about the impartiality of numer­ ous other seated jurors and alternates. In my estimation, more than half of those seated made written and oral comments suggesting active antipathy toward the defen­ dants. The majority thus misses the mark when it asserts that “Skilling’s seated jurors . . . exhibited nothing like the display of bias shown in Irvin.” Ante, at 29. Juror 10, for instance, reported on his written questionnaire that he knew several co-workers who owned Enron stock; that he personally may have owned Enron stock through a mutual fund; that he heard and read about the Enron cases from the “Houston Chronicle, all three Houston news channels, Fox news, talking with friends [and] co-workers, [and] Texas Lawyer Magazine”; that he believed Enron’s col­ lapse “was due to greed and mismanagement”; that “[i]f [Lay] did not know what was going on in his company, he was really a poor manager/leader”; and that the defen­ dants were “suspect.” Supp. App. 11sa–19sa. During questioning, he said he “th[ought]” he could presume innocence and “believe[d]” he could put the Government to its proof, but he also acknowledged that he might have “some hesitancy” “in telling people the government didn’t prove its case.” App. 851a–852a. —————— 22 As one of Skilling’s jury experts observed, there is a “tendency in voir dire of jury pool members in high-profile cases to minimize their exposure to media, their knowledge of prejudicial information, and any biases they may have.” App. 763a; see also id., at 637a (“Those who perceive themselves or wish to be perceived as good citizens are reluc­ tant to admit they cannot be fair”). For this reason, the fact that “none of the seated jurors and alternates checked the ‘yes’ box” on the written questionnaire when “asked whether they ‘ha[d] an opinion about [Skilling],’ ” ante, at 26, is of minimal significance, particularly given that the Causey plea and the impending trial received significant media coverage after the questionnaires were submitted. 36 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. Juror 11 wrote that he “work[ed] with someone who worked at Enron”; that he got Enron-related news from the “Houston Chronicle, Channel 2 News, Channel 13 News, O’Reilly Factor, [and] talking with friends and co­ workers”; that he regularly visited the Chronicle Web site; that “greed on Enron’s part” caused the company’s col­ lapse; and that “a lot of people were hurt financially.” Supp. App. 26sa–30sa. During questioning, he stated that he would have “no problem” requiring the Government to prove its case, but he also told the court that he believed Lay was “greedy” and that corporate executives are often “stretching the legal limits . . . . I’m not going to say that they’re all crooks, but, you know.” App. 857a, 854a. Asked whether he would “star[t] the case with sort of an inkling that because [Lay is] greedy he must have done something illegal,” he offered an indeterminate “not neces­ sarily.” Id., at 857.23 —————— 23 Many other seated jurors and alternates expressed similarly trou­ bling sentiments. See, e.g., Supp. App. 57sa–60sa (Juror 20) (obtained Enron-related news from the Chronicle and “local news stations”; blamed Enron’s collapse on “[n]ot enough corporate controls or effective audit procedures to prevent mismanagement of corporate assets”; and was “angry that so many people lost their jobs and their retirement savings”); id., at 72sa–75sa (Juror 38) (followed Enron-related news from various sources, including the Chronicle; was “angry about what happened”; and “fe[lt] bad for those that worked hard and invested in the corp[oration] only to have it all taken away”); id., at 117sa–118sa (Juror 64) (had several friends who worked at Enron and lost money; heard about the Enron cases on the news; described the collapse as “sad” because “people lost jobs [and] money—lots of money”; and believed the Government “did the right thing” in its investigation); id., at 177sa–181sa (Juror 87) (received Enron-related news from the Chronicle, Channel 13 news, the O’Reilly Factor, Internet news sources, and friends, family, and co-workers; attributed Enron’s collapse to “[p]oor management [and] bad judgment—greed”; lamented “[t]he sad state of the long-term loyal employees who are left with nothing in their retirement accounts”; and “admire[d] [the] bravery” of Enron whistle­ blower Sherron Watkins “for bringing the situation to the attention of the public, which stopped things from getting worse”); id., at 191sa– Cite as: 561 U. S. ____ (2010) 37 Opinion of SOTOMAYOR, J. While several seated jurors and alternates did not make specific comments suggesting prejudice, their written and oral responses were so abbreviated as to make it virtually impossible for the District Court reliably to assess whether they harbored any latent biases. Juror 13, for instance, wrote on his questionnaire that he had heard about the Enron cases from the “[n]ews.” Supp. App. 42sa. The court questioned him for two minutes, during which time he confirmed that he had “heard what’s on the news, basically,” including “that the trial had moved from the 17th to the 31st.” He added that the story “was all over the news on every detail of Enron.” App. 858a–860a. No meaningful information about his knowledge or attitudes was obtained. Similarly, Juror 78 wrote that she had not followed Enron-related news but was aware that “[m]any people lost their jobs.” Supp. App. 151sa. The court ques­ tioned her for less than 90 seconds. During that time, she acknowledged that she had “caught glimpses” of the cov­ erage and “kn[e]w generally, you know, that the company went bankrupt” and that there “were some employees that went off and did their own businesses.” App. 969a. Little more was learned.24 —————— 195sa (Juror 90) (heard Enron-related news from his wife, co-workers, and television; wrote that “[i]t’s not right for someone . . . to take” away the money that the “small average worker saves . . . for retirement all his life”; and described the Government’s Enron investigation as “a good thing”); id., at 221sa–225sa (Juror 113) (obtained information about Enron from a “co-worker [who] was in the jury pool for Mrs. Fastow’s trial”; worked for an employer who lost money as a result of Enron’s collapse; found it “sad” that the collapse had affected “such a huge number of people”; and thought “someone had to be doing some­ thing illegal”); id., at 236sa–237sa (Juror 116) (knew a colleague who lost money in Enron’s collapse; obtained Enron-related news from the “Houston Chronicle, Time Magazine, local TV news [and] radio, friends, family, [and] co-workers, [and] internet news sources”; and noted that what stood out was “[t]he employees and retirees that lost their savings”). 24 Several other jurors fell into this category. Juror 67 wrote on his 38 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. In assessing the likelihood that bias lurked in the minds of at least some of these seated jurors, I find telling the way in which voir dire played out. When the District Court asked the prospective jurors as a group whether they had any reservations about their ability to presume innocence and put the Government to its proof, only two answered in the affirmative, and both were excused for cause. Id., at 815a–820a. The District Court’s individual questioning, though truncated, exposed disqualifying prejudices among numerous additional prospective jurors who had earlier expressed no concerns about their impar­ tiality. See n. 7, supra. It thus strikes me as highly likely that at least some of the seated jurors, despite stating that they could be fair, harbored similar biases that a more probing inquiry would likely have exposed. Cf. Yount, 467 U.S., at 1034, n. 10 (holding that the trial court’s “particularly extensive” 10-day voir dire assured the jury’s impartiality).25 —————— questionnaire that he had heard about Enron from the Chronicle and “Internet news sources.” Id., at 133sa. He was questioned for 90 seconds, during which time he indicated that he had read an article on the Internet the preceding night “about the jury selection taking place today, stuff like that.” App. 944a. Juror 99 wrote that she had not heard or read about the Enron cases and did not “know anything about” Enron. Supp. App. 210sa. The District Court questioned her for barely one minute. She stated that she had “[n]ot really” learned more about the case, but added that she had heard “this and that” from her par­ ents. App. 995a–996a. The court did not press further. 25 The majority suggests that the fact that Skilling “challenged only one of the seated jurors for cause” indicates that he did not believe the other jurors were biased. Ante, at 31. Our decisions, however, distin­ guish claims involving “the partiality of an individual juror” from antecedent claims directed at “the partiality of the trial jury as a whole.” Patton v. Yount, 467 U.S. 1025, 1036 (1984); see also Frazier v. United States, 335 U.S. 497, 514 (1948) (“[T]he two sorts of challenge[s] are distinct and are therefore to be dealt with separately”). If the jury selection process does not, as here, give a defendant a fair opportunity to identify biased jurors, the defendant can hardly be faulted for failing to make for-cause challenges. Cite as: 561 U. S. ____ (2010) 39 Opinion of SOTOMAYOR, J. The majority suggests, ante, at 17–18, 30, that the jury’s decision to acquit Skilling on nine relatively minor insider trading charges confirms its impartiality. This argument, however, mistakes partiality with bad faith or blind vin­ dictiveness. Jurors who act in good faith and sincerely believe in their own fairness may nevertheless harbor disqualifying prejudices. Such jurors may well acquit where evidence is wholly lacking, while subconsciously resolving closer calls against the defendant rather than giving him the benefit of the doubt. Cf. United States v. McVeigh, 918 F. Supp. 1467, 1472 (WD Okla. 1996) (preju­ dice “may go unrecognized in those who are affected by it. The prejudice that may deny a fair trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to some­ thing not included in the evidence. That something has its most powerful effect if it generates strong emotional re­ sponses”). In this regard, it is significant that the Gov­ ernment placed relatively little emphasis on the nine insider trading counts during its closing argument, declin­ ing to explain its theory on all but one of the counts in any detail whatsoever. Record 37010. The acquittals on those counts thus provide scant basis for inferring a lack of prejudice. * * * In sum, I cannot accept the majority’s conclusion that voir dire gave the District Court “a sturdy foundation to assess fitness for jury service.” Cf. ante, at 29. Taken together, the District Court’s failure to cover certain vital subjects, its superficial coverage of other topics, and its uncritical acceptance of assurances of impartiality leave me doubtful that Skilling’s jury was indeed free from the deep-seated animosity that pervaded the community at large. “[R]egardless of the heinousness of the crime 40 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. charged, the apparent guilt of the offender[,] or the station in life which he occupies,” our system of justice demands trials that are fair in both appearance and fact. Irvin, 366 U.S., at 722. Because I do not believe Skilling’s trial met this standard, I would grant him relief

I agree with the Court that petitioner Jeffrey Skilling’s challenge to the impartiality of his jury and to the District Court’s conduct of the voir dire fails. I therefore join Parts I and II of the Court’s opinion. I also agree that the deci­ sion upholding Skilling’s conviction for so-called “honest­ services fraud” must be reversed, but for a different rea­ son. In my view, the specification in 18 U.S. C. (0 ed., Supp. II) that “scheme or artifice to defraud” in the mail-fraud and wire-fraud statutes, and 13 (0 ed.), includes “a scheme or artifice to deprive an­ other of the intangible right of honest services,” is vague, and therefore violates the Due Process Clause of the Fifth Amendment. The Court strikes a pose of judicial humility in proclaiming that our task is “not to destroy the Act but to construe it,” ante, at 43 (internal quotation marks omitted). But in transforming the prohibition of “honest­ services fraud” into a prohibition of “bribery and kick­ backs” it is wielding a power we long ago abjured: the power to define new federal crimes. See United States v. Hudson, 2 SKILLING v. UNITED STATES Opinion of SCALIA, J. I A criminal statute must clearly define the conduct it proscribes, see 108 (192). A statute that is unconstitutionally vague cannot be saved by a more precise indictment, see Lan nor by judicial construction that writes in specific criteria that its text does not contain, see United States v. 92 U.S. 214, 219–221 (18). Our cases have described vague statutes as failing “to provide a person of ordinary intelli­ gence fair notice of what is prohibited, or [as being] so standardless that [they] authoriz[e] or encourag[e] seri­ ously discriminatory enforcement.” United Here, Skilling argues that fails to provide fair notice and encourages arbitrary enforcement because it provides no definition of the right of honest services whose deprivation it prohibits. Brief for Petitioner 38–39, 42–44. In my view Skilling is correct. The Court maintains that “the intangible right of honest services ” means the right not to have one’s fiduciaries accept “bribes or kickbacks.” Its first step in reaching that conclusion is the assertion that the phrase refers to “the doctrine developed” in cases decided by lower federal courts prior to our decision in Ante, at 39. I do not contest that. I agree that Congress used the novel phrase to adopt the lower-court case law that had been disapproved by McNally—what the Court calls “the pre-McNally honest­ services doctrine,” ante, at 43. The problem is that that doctrine provides no “ascertainable standard of guilt,” United and certainly is not limited to “bribes or kick­ backs.” Investigation into the meaning of “the pre-McNally honest-services doctrine” might logically begin with Cite as: 51 U. S. (10) 3 Opinion of SCALIA, J. McNally itself, which rejected it. That case repudiated the many Court of Appeals holdings that had expanded the meaning of “fraud” in the mail-fraud and wire-fraud stat­ utes beyond deceptive schemes to obtain property. 483 U.S., at 30. If the repudiated cases stood for a prohibi­ tion of “bribery and kickbacks,” one would have expected those words to appear in the opinion’s description of the cases. In fact, they do not. Not at all. Nor did McNally even provide a consistent definition of the pre-existing theory of fraud it rejected. It referred variously to a right of citizens “to have the [State]’s affairs conducted hon­ estly,” to “honest and impartial government,” to “good government,” and “to have public officials perform their duties honestly,” It described prior case law as holding that “a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud,” But the pre-McNally Court of Appeals opinions were not limited to fraud by public officials. Some courts had held that those fiduciaries subject to the “honest services” obligation included private individuals who merely par­ ticipated in public decisions, see, United States v. ), and even private employees who had no role in public decisions, see, United States v. F.2d 132, 1335–133 (CADC 1983); United Moreover, “to say that a man is a fiduciary only begins [the] analysis; it gives direction to further inquiry. What obligations does he owe as a fiduciary?” SEC v. Chenery Corp., 318 U.S. 80, 85–8 (1943). None of the “honest services” cases, neither those pertaining to public officials nor those pertaining to private employees, defined the nature and content of the fiduciary duty central to the “fraud” offense. There was not even universal agreement concerning the 4 SKILLING v. UNITED STATES Opinion of SCALIA, J. source of the fiduciary obligation—whether it must be positive state or federal law, see, United States v. Rabbitt, or merely gen­ eral principles, such as the “obligations of loyalty and fidelity” that inhere in the “employment relationship,” The decision McNally reversed had grounded the duty in general (not jurisdiction-specific) trust law, see a corpus juris fes­ tooned with various duties. See, Restatement (Sec­ ond) of Trusts Another pre-McNally case referred to the general law of agency, United States v. 3 F.2d 5, modified on other grounds by which imposes duties quite different from those of a trustee.1 See Re­ statement (Second) of Agency (195). This indeterminacy does not disappear if one assumes that the pre-McNally cases developed a federal, common­ law fiduciary duty; the duty remained hopelessly unde­ fined. Some courts described it in astoundingly broad language. (CA5 19), loftily declared that “[l]aw puts its imprimatur on the accepted moral standards and condemns conduct which fails to match the ‘reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.’ ” at 1 (quoting (CA5 1958)). Other courts unhelpfully added that any scheme “contrary to public policy” was also condemned by —————— 1 The Court is untroubled by these divisions because “these debates were rare in bribe and kickback cases,” in which “[t]he existence of a fiduciary relationship, under any definition of that term, was usually beyond dispute,” ante, at 43, n. 42. This misses the point. The Courts of Appeals may have consistently found unlawful the acceptance of a bribe or kickback by one or another sort of fiduciary, but they have not consistently described (as the statute does not) any test for who is a fiduciary. Cite as: 51 U. S. (10) 5 Opinion of SCALIA, J. the statute, United 111 See also United States v. Mandel, 591 F.2d 1, 131 (CA4 199) (any scheme that is “contrary to public policy and conflicts with accepted standards of moral uprightness, fundamental honesty, fair play and right dealing”). Even opinions that did not indulge in such grandiloquence did not specify the duty at issue beyond loyalty or honesty, see, Von at 1005– 100. Moreover, the demands of the duty were said to be greater for public officials than for private employees, see, ; n. 1, but in what respects (or by how much) was never made clear. The indefiniteness of the fiduciary duty is not all. Many courts held that some je-ne-sais-quoi beyond a mere breach of fiduciary duty was needed to establish honest­ services fraud. See, Von (col­ lecting cases); United There was, unsurprisingly, some dispute about that, at least in the context of acts by persons owing duties to the public. See United States v. Price, 88 F.2d 2, 23 And even among those courts that did require something additional where a public official was involved, there was disagreement as to what the addition should be. For example, in United the Seventh Circuit held that mate­ rial misrepresentations and active concealment were enough, at 4–48. But in Rabbitt, the Eighth Circuit held that actual harm to the State was needed, at Similar disagreements occurred with respect to private employees. Courts disputed whether the defendant must use his fiduciary position for his own gain. Compare with United One opinion upheld a mail-fraud conviction on the ground that the SKILLING v. UNITED STATES Opinion of SCALIA, J. defendant’s “failure to disclose his receipt of kickbacks and consulting fees from [his employer’s] suppliers resulted in a breach of his fiduciary duties depriving his employer of his loyal and honest services.” United States v. Bryza, 522 F.2d 414, 422 Another opinion, however, demanded more than an intentional failure to disclose: “There must be a failure to disclose something which in the knowledge or contemplation of the employee poses an independent business risk to the employer.” F.2d, at 133. Other courts required that the victim suffer some loss, see, –542—a proposition that, of course, other courts rejected, see, United ; United 535 F.2d 5, The Court’s statement today that there was a deprivation of honest services even if “the scheme occasioned a money or property gain for the betrayed party,” ante, at 3, is therefore true, except to the extent it is not. In short, the first step in the Court’s analysis—holding that “the intangible right of honest services” refers to “the honest-services doctrine recognized in Court of Appeals’ decisions before McNally,” ante, at 40—is a step out of the frying pan into the fire. The pre-McNally cases provide no clear indication of what constitutes a denial of the right of honest services. The possibilities range from any action that is contrary to public policy or otherwise immoral, to only the disloyalty of a public official or employee to his principal, to only the secret use of a perpetrator’s position of trust in order to harm whomever he is beholden to. The duty probably did not have to be rooted in state law, but maybe it did. It might have been more demanding in the case of public officials, but perhaps not. At the time was enacted there was no settled criterion for choosing among these options, for conclusively settling what was in Cite as: 51 U. S. (10) Opinion of SCALIA, J. and what was out.2 II The Court is aware of all this. It knows that adopting by reference “the pre-McNally honest-services doctrine,” ante, at 43, is adopting by reference nothing more precise than the referring term itself (“the intangible right of honest services”). Hence the deus ex machina: “[W]e pare that body of precedent down to its core,” ante, at 39. Since the honest-services doctrine “had its genesis” in bribery prosecutions, and since several cases and counsel for Skilling referred to bribery and kickback schemes as “core” or “paradigm” or “typical” examples, or “[t]he most obvious form,” of honest-services fraud, ante, at 43–44 (internal quotation marks omitted), and since two cases and counsel for the Government say that they formed the “vast major­ ity,” or “most” or at least “[t]he bulk” of honest-services cases, ante, at 43–44 THEREFORE it must be the case that they are all Congress meant by its reference to the honest-services doctrine. Even if that conclusion followed from its premises, it would not suffice to eliminate the vagueness of the stat­ ute. It would solve (perhaps) the indeterminacy of what acts constitute a breach of the “honest services” obligation under the pre-McNally law. But it would not solve the most fundamental indeterminacy: the character of the “fiduciary capacity” to which the bribery and kickback —————— 2 Courts since ’s enactment have fared no better, reproducing some of the same disputes that predated McNally. See, Sorich v. United States, 555 U. S. – (09) (SCALIA, J., dissenting from denial of certiorari) (slip op., at 3–4) (collecting cases). We have previ­ ously found important to our vagueness analysis “the conflicting results which have arisen from the painstaking attempts of enlightened judges in seeking to carry out [a] statute in cases brought before them.” United I am at a loss to explain why the Court barely mentions those conflicts today. 8 SKILLING v. UNITED STATES Opinion of SCALIA, J. restriction applies. Does it apply only to public officials? Or in addition to private individuals who contract with the public? Or to everyone, including the corporate officer here? The pre-McNally case law does not provide an answer. Thus, even with the bribery and kickback limita­ tion the statute does not answer the question “What is the criterion of guilt?” But that is perhaps beside the point, because it is obvi­ ous that mere prohibition of bribery and kickbacks was not the intent of the statute. To say that bribery and kickbacks represented “the core” of the doctrine, or that most cases applying the doctrine involved those offenses, is not to say that they are the doctrine. All it proves is that the multifarious versions of the doctrine overlap with regard to those offenses. But the doctrine itself is much more. Among all the pre-McNally smörgåsbord-offerings of varieties of honest-services fraud, not one is limited to bribery and kickbacks. That is a dish the Court has cooked up all on its own. Thus, the Court’s claim to “respec[t] the legislature,” ante, at n. 44 (emphasis deleted), is false. It is entirely clear (as the Court and I agree) that Congress meant to reinstate the body of pre-McNally honest-services law; and entirely clear that that prohibited much more (though precisely what more is uncertain) than bribery and kick­ backs. Perhaps it is true that “Congress intended to reach at least bribes and kickbacks,” ante, at 44. That simply does not mean, as the Court now holds, that “ criminalizes only” bribery and kickbacks, ante, at Arriving at that conclusion requires not interpretation but invention. The Court replaces a vague criminal stan­ dard that Congress adopted with a more narrow one (in­ cluded within the vague one) that can pass constitutional muster. I know of no precedent for such “paring down,”3 —————— 3 The only alleged precedent the Court dares to describe is Civil Ser Cite as: 51 U. S. (10) 9 Opinion of SCALIA, J. and it seems to me clearly beyond judicial power. This is not, as the Court claims, ante, at 41, simply a matter of adopting a “limiting construction” in the face of potential unconstitutionality. To do that, our cases have been care­ ful to note, the narrowing construction must be “fairly possible,” “rea­ sonable,” (15), or not “plainly contrary to the intent of Congress,” Edward J. DeBartolo As we have seen (and the Court does not contest), no court before McNally concluded that the “deprivation of honest ser­ vices” meant only the acceptance of bribes or kickbacks. If it were a “fairly possible” or “reasonable” construction, not “contrary to the intent of Congress,” one would think that some court would have adopted it. The Court does not even point to a post-McNally case that reads to cover only bribery and kickbacks, and I am aware of none. The canon of constitutional avoidance, on which the Court so heavily relies, see ante, at 41–42, states that “when the constitutionality of a statute is assailed, if the —————— vice That case in­ volved a provision of the Hatch Act incorporating prior adjudications of the Civil Service Commission. We upheld the provision against a vagueness challenge—not, however, by “paring down” the adjudications to a more narrow rule that we invented, but by concluding that what they held was not vague. See at 51–54. The string of cases the Court lists, see ante, at 41–42, n. 41, (almost none of which addressed claims of vagueness), have nothing to do with “paring down.” The one that comes closest, United States v. Thirty-seven Photographs, 402 U.S. 33 specified a time limit within which proceedings authorized by statute for the forfeiture of obscene imported materials had to be commenced and completed. That is not much different from “reading in” a reasonable-time requirement for obligations undertaken in con­ tracts, and can hardly be described as a rewriting or “paring down” of the statute. The Court relied on legislative history anticipating that the proceedings would be prompt, at 30–31, and noted that (unlike here) it was not “decid[ing] issues of policy,” 10 SKILLING v. UNITED STATES Opinion of SCALIA, J. statute be reasonably susceptible of two interpretations, by one of which it would be unconstitutional and by the other valid, it is our plain duty to adopt that construction which will save the statute from constitutional infirmity.” United States ex rel. Attorney ; see also United 5 U.S. 41, (describing the canon as decisive “in the choice of fair alternatives”). Here there is no choice to be made between two “fair alterna­ tives.” Until today, no one has thought (and there is no basis for thinking) that the honest-services statute prohib­ ited only bribery and kickbacks. I certainly agree with the Court that we must, “if we can,” uphold, rather than “condemn,” Congress’s enact­ ments, ante, at 38. But I do not believe we have the power, in order to uphold an enactment, to rewrite it. Congress enacted the entirety of the pre-McNally honest­ services law, the content of which is (to put it mildly) unclear. In prior vagueness cases, we have resisted the temptation to make all things right with the stroke of our pen. See, I would show the same restraint today, and reverse Skill­ ing’s conviction on the basis that provides no “ascer­ tainable standard” for the conduct it condemns, L. Cohen, 255 U.S., at Instead, the Court today adds to our functions the prescription of criminal law. III A brief word about the appropriate remedy. As I noted Skilling has argued that cannot be constitutionally applied to him because it affords no defi­ nition of the right whose deprivation it prohibits. Though this reasoning is categorical, it does not make Skilling’s challenge a “facial” one, in the sense that it seeks invalida­ tion of the statute in all its applications, as opposed to preventing its enforcement against him. I continue to Cite as: 51 U. S. (10) 11 Opinion of SCALIA, J. doubt whether “striking down” a statute is ever an appro­ priate exercise of our Article III power. See Chicago v. Morales, In the present case, the universality of the infirmity Skill­ ing identifies in may mean that if he wins, anyone else prosecuted under the statute will win as well, see at 5–58. But Skilling only asks that his conviction be reversed, Brief for Petitioner 5–58, so the remedy he seeks is not facial invalidation. I would therefore reverse Skilling’s conviction under on the ground that it fails to define the conduct it prohibits. The fate of the statute in future prosecutions— obvious from my reasoning in the case—would be a matter for stare decisis. * * * It is hard to imagine a case that more clearly fits the description of what Chief Justice Waite said could not be done, in a colorful passage oft-cited in our vagueness opinions, United States v. 92 U.S., 21: “The question, then, to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only. “It would certainly be dangerous if the legislature could set a net large enough to catch all possible of­ fenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the gov­ ernment. “To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty.” Cite as: 51 U. S. (10) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. 08–1394 JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 10] JUSTICE ALITO, concurring in part and concurring in the judgment. I join the judgment of the Court and all but Part II of the Court’s opinion. I write separately to address peti tioner’s jury-trial argument. The Sixth Amendment guarantees criminal defendants a trial before “an impartial jury.” In my view, this re quirement is satisfied so long as no biased juror is actually seated at Of course, evidence of pretrial media attention and widespread community hostility may play a role in the bias inquiry. Such evidence may be important in assessing the adequacy of voir dire, see, Mu’ v. Virginia, or in reviewing the denial of requests to dismiss particular jurors for cause, see, 103– 1040 There are occasions in which such evidence weighs heavily in favor of a change of venue. In the end, however, if no biased jury is actually seated, there is no violation of the defendant’s right to an impartial jury. See at 1031–1035, 1041; 800–801, ; see also Rivera v. Illinois, 55 U. S. – (09) (slip op., at –8); United States v. Martinez-Salazar, 528 U.S. (00); v. Phillips, 5 U.S. 9, Petitioner advances a very different understanding of 2 SKILLING v. UNITED STATES Opinion of ALITO, J. the jury-trial right. Where there is extraordinary pretrial publicity and community hostility, he contends, a court must presume juror prejudice and thus grant a change of venue. Brief for Petitioner 25–. I disagree. Careful voir dire can often ensure the selection of impartial jurors even where pretrial media coverage has generated much hostile community sentiment. Moreover, once a jury has been selected, there are measures that a trial judge may take to insulate jurors from media coverage during the course of the What the Sixth Amendment requires is “an impartial jury.” If the jury that sits and returns a verdict is impartial, a defendant has received what the Sixth Amendment requires. The rule that petitioner advances departs from the text of the Sixth Amendment and is difficult to apply. It re quires a trial judge to determine whether the adverse pretrial media coverage and community hostility in a particular case has reached a certain level of severity, but there is no clear way of demarcating that level or of de termining whether it has been met. Petitioner relies chiefly on three cases from the 190’s— and v. Louisiana, 33 U.S. (193). I do not read those cases as demanding peti tioner’s suggested approach. As the Court notes, and Estes primarily “involved media interfer ence with courtroom proceedings during ” Ante, at 1, n. 14; see also post, at (SOTOMAYOR, J., concurring in part and dissenting in part). involved unique events in a small community. I share some of JUSTICE SOTOMAYOR’s concerns about the adequacy of the voir dire in this case and the trial judge’s findings that certain jurors could be impartial. See post, at –3. But those highly fact-specific issues are not within the question presented. Pet. for Cert. i. I also do not understand the opinion of the Court as reaching Cite as: 51 U. S. (10) 3 Opinion of ALITO, J. any question regarding a change of venue under Federal Rule of Criminal Procedure 21. Because petitioner, in my view, is not entitled to a re versal of the decision below on the jury-trial question that is before us, I join the judgment of the Court in full. Cite as: 51 U. S. (10) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES No. 08–1394 JEFFREY K. SKILLING, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT [June 24, 10] JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS and JUSTICE BREYER join, concurring in part and dissenting in part. I concur in the Court’s resolution of the honest-services fraud question and join Part III of its opinion. I respect­ fully dissent, however, from the Court’s conclusion that Jeffrey Skilling received a fair trial before an impartial jury. Under our relevant precedents, the more intense the public’s antipathy toward a defendant, the more careful a court must be to prevent that sentiment from tainting the jury. In this case, passions ran extremely high. The sudden collapse of Enron directly affected thousands of people in the Houston area and shocked the entire com­ munity. The accompanying barrage of local media cover­ age was massive in volume and often caustic in tone. As Enron’s one-time CEO, Skilling was at the center of the storm. Even if these extraordinary circumstances did not constitutionally compel a change of venue, they required the District Court to conduct a thorough voir dire in which prospective jurors’ attitudes about the case were closely scrutinized. The District Court’s inquiry lacked the neces­ sary thoroughness and left serious doubts about whether the jury empaneled to decide Skilling’s case was capable of rendering an impartial decision based solely on the evi­ dence presented in the courtroom. Accordingly, I would 2 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. grant Skilling relief on his fair-trial claim. I The majority understates the breadth and depth of community hostility toward Skilling and overlooks signifi­ cant deficiencies in the District Court’s jury selection process. The failure of Enron wounded Houston deeply. Virtually overnight, what had been the city’s “largest, most visible, and most prosperous company,” its “foremost social and charitable force,” and “a source of civic pride” was reduced to a “shattered shell.” App. ¶, 13, pp. 49a–50a, 1152a. Thousands of the company’s employ­ ees lost their jobs and saw their retirement savings van­ ish. As the effects rippled through the local economy, thousands of additional jobs disappeared, businesses shuttered, and community groups that once benefited from Enron’s largesse felt the loss of millions of dollars in con­ tributions. See, 3 Supp. Record 9, 12; see also (CA5 09) (“Accounting firms that serviced Enron’s books had less work, hotels had more open rooms, restaurants sold fewer meals, and so on”). Enron’s community ties were so extensive that the entire local U. S. Attorney’s Office was forced to recuse itself from the Government’s investigation into the company’s fall. See 3 Supp. Record 08 (official press release). With Enron’s demise affecting the lives of so many Houstonians, local media coverage of the story saturated the community. According to a defense media expert, the Houston Chronicle—the area’s leading newspaper— assigned as many as 12 reporters to work on the Enron story full time. App. 58a–59a. The paper mentioned Enron in more than 4,000 articles during the 3-year period following the company’s December 01 bankruptcy filing. Hundreds of these articles discussed Skilling by name. See 3 Supp. Record 2114. Skilling’s expert, a professional journalist and academic with 30 years’ experience, could Cite as: 51 U. S. (10) 3 Opinion of SOTOMAYOR, J. not “recall another instance where a local paper dedicated as many resources to a single topic over such an extended period of time as the Houston Chronicle dedicated to Enron.” App. ¶32, p. 50a. Local television news coverage was similarly pervasive and, in terms of “editorial theme,” “largely followed the Chronicle’s lead.” at 559a; see also at 1a. Between May 02 and October 04, local stations aired an estimated 19,000 news seg­ ments involving Enron, more than 100 of which men­ tioned Skilling. 3 Supp. Record 211. While many of the stories were straightforward news items, many others conveyed and amplified the commu­ nity’s outrage at the top executives perceived to be respon­ sible for the company’s bankruptcy. A Chronicle report on Skilling’s 02 testimony before Congress is typical of the coverage. It began, “Across Houston, Enron employees watched former chief executive Jeffrey Skilling’s congres­ sional testimony on television, turning incredulous, angry and then sarcastic by turns, as a man they knew as savvy and detail-oriented pleaded memory failure and ignorance about critical financial transactions at the now-collapsed energy giant.” App. 1218a. “ ‘He is lying; he knew every­ thing,’ said [an employee], who said she had seen Skilling frequently over her 18 years with the firm, where Skilling was known for his intimate grasp of the inner doings at the company. ‘I am getting sicker by the minute.’ ” at 1219a. A companion piece quoted a local attorney who called Skilling an “idiot” who was “in denial”; he added, “I’m glad [Skilling’s] not my client.” at a–593a. Articles deriding Enron’s senior executives were juxta­ posed with pieces expressing sympathy toward and soli­ darity with the company’s many victims. Skilling’s media expert counted nearly a hundred victim-related stories in the Chronicle, including a “multi-page layout entitled ‘The Faces of Enron,’ ” which poignantly described the gut­ wrenching experiences of former employees who lost vast 4 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. sums of money, faced eviction from their homes, could not afford Christmas gifts for their children, and felt “scared,” “hurt,” “humiliat[ed],” “helpless,” and “betrayed.” at 585a–58a. The conventional wisdom that blame for Enron’s devastating implosion and the ensuing human tragedy ultimately rested with Skilling and former Enron Chairman Kenneth Lay became so deeply ingrained in the popular imagination that references to their involvement even turned up on the sports pages: “If you believe the story about [Coach Bill Parcells] not having anything to do with the end of Emmitt ’s Cowboys career, then you probably believe in other far-fetched concepts. Like Jeff Skilling having nothing to do with Enron’s collapse.” 3 Supp. Record 811. When a federal grand jury indicted Skilling, Lay, and Richard Causey—Enron’s former chief accounting officer— in 04 on charges of conspiracy to defraud, securities fraud, and other crimes, the media placed them directly in its crosshairs. In the words of one article, “there was one thing those whose lives were touched by the once-exalted company all seemed to agree upon: The indictment of former Enron CEO Jeff Skilling was overdue.” App. 1393a. Scoffing at Skilling’s attempts to paint himself as “a ‘victim’ of his subordinates,” at 1394a, the Chronicle derided “the doofus defense” that Lay and Skilling were expected to offer, at 1401a.1 The Chronicle referred to —————— 1 See also App. 35a (describing Enron as “hardball fraud” and noting that “Enron prosecutors have approached the case more like an organ­ ized crime investigation than a corporate fraud prosecution,” a “tactic [that] makes sense” given “the sheer pervasiveness of fraud, corruption, and self-dealing”); at 1403a (“Lay stood proudly in front of Enron’s facade of success, while Skilling and his own prot[égé], [Andrew] Fastow, ginned up increasingly convoluted mechanisms for concealing the financial reality. A court will decide the particulars, but yes, Ken Lay knew”); 140a, 1409a (describing Enron’s collapse as “failure as a result of fraud” and criticizing Skilling for using “vitriol [as] a smokescreen” and “bolting for the door” just before Enron’s stock Cite as: 51 U. S. (10) 5 Opinion of SOTOMAYOR, J. the coming Skilling/Lay trial as “the main event” and “The Big One,” which would finally bring “the true measure of justice in the Enron saga.” Record 40002; App. 1a, 140a.2 On the day the superseding indictment charging Lay was issued, “the Chronicle dedicated three-quarters of its front page, 2 other full pages, and substantial portions of 4 other pages, all in the front or business sections, to th[e] story.” at 580a–581a. Citing the widely felt sense of victimhood among Hous­ tonians and the voluminous adverse publicity, Skilling moved in November 04 for a change of venue.3 The District Court denied the motion, characterizing the media coverage as largely “objective and unemotional.” App. to Brief for United States 11a. Voir dire, it concluded, would provide an effective means to “ferret out any bias” in the jury pool. at 18a; see ante, at 4. To that end, the District Court began the jury selection process by mailing screening questionnaires to 400 pro­ spective jurors in November 05. The completed ques­ tionnaires of the 283 respondents not excused for hardship dramatically illustrated the widespread impact of Enron’s —————— price plummeted); 3 Supp. Record 111 (discussing the role of Skilling and Lay in “the granddaddy of all corporate frauds”). 2 According to Skilling’s media expert, local television stations “adopted these same themes” and “dr[o]ve them home through such vivid and repeated visual imagery as replaying footage of Skilling’s ‘perp walk’ when details about Skilling’s upcoming trial [we]re dis­ cussed.” App. ¶5, p. 584a. During arraignment, news outlets “fol­ lowed each man as he drove from his home to FBI headquarters, to the court, and back home, often providing ‘color’ commentary—such as interviewing former Enron employees for comment on the day’s events.” at 581a. 3 Reporting on the change-of-venue motion, the Chronicle described Skilling as a “desperate defendant,” and the Austin American- Statesman opined that while a change of venue may make sense “[f]rom a legal perspective,” “from the standpoint of pure justice, the wealthy executives really should be judged right where their economic hurri­ cane struck with the most force.” at 48a, 4a. SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. collapse on the Houston community and confirmed the intense animosity of Houstonians toward Skilling and his codefendants. More than one-third of the prospective jurors (approximately 99 of 283, by my count) that they or persons they knew had lost money or jobs as a result of the Enron bankruptcy. Two-thirds of the jurors (about 188 of 283) expressed views about Enron or the defendants that suggested a potential predisposition to convict. In many instances, they did not mince words, describing Skilling as “smug,” “arrogant,” “brash,” “con­ ceited,” “greedy,” “deceitful,” “totally unethical and crimi­ nal,” “a crook,” “the biggest liar on the face of the earth,” and “guilty as sin” (capitalization omitted).4 Only about 5 percent of the prospective jurors (15 of 283) did not read the Houston Chronicle, had not otherwise “heard or read about any of the Enron cases,” Record 13019, were not connected to Enron victims, and gave no answers suggest­ —————— 4 See, Juror 1 (“Ken Lay and the others are guilty as all get out and ought to go to jail”; Skilling is “[b]rash, [a]rrogant [and] [c]onceited”; “I find it morally awful that these people are still running loose”); Juror 0 (“Mr. Skilling is the biggest liar on the face of the earth”); Juror 13 (Skilling “would lie to his mother if it would further his cause”); Juror 185 (“I think [Skilling] was arrogant and a crook”); Juror 0 (Skilling is a “[s]killful [l]iar [and] crook” who did “a lot of the dirty work”; the defendants would “have to be blind, deaf, [and] stupid to be unaware of what was happening!” (emphasis deleted)); Juror (Skilling is “[t]otally unethical and criminal”; the defendants “are all guilty and should be reduced to having to beg on the corner [and] live under a bridge”); Juror 238 (“They are all guilty as sin—come on now”); Juror 299 (Skilling “initiated, designed, [and] authorized certain illegal actions”); Juror 314 (Lay “should ‘fess up’ and take his punishment like a man”; “[t]he same goes for Jeffrey Skilling. He and his family should be stripped of all of their assets [and] made to start over just like the thousands he made start all over”); Juror 3 (Skilling is “[s]mug,” “[g]reedy,” and “[d]isingenu[ous]”; he “had an active hand in creating and sustaining a fraud”). Defendants’ Renewed Motion for Change of Venue, Record, Doc. 18 (Sealed Exhs.) (hereinafter Skill­ ing’s Renewed Venue Motion); see also App. 94a–9a (summarizing additional responses). Cite as: 51 U. S. (10) Opinion of SOTOMAYOR, J. ing possible antipathy toward the defendants.5 The par­ ties jointly stipulated to the dismissal of 119 members of the jury pool for cause, hardship, or disability, but numer­ ous individuals who had made harsh comments about Skilling remained. On December 28, 05, shortly after the questionnaires had been returned, Causey pleaded guilty. The plea was covered in lead newspaper and television stories. A front­ page headline in the Chronicle proclaimed that “Causey’s —————— 5 Another percent (about 59 of 283) that they read the Chronicle or had otherwise heard about the Enron cases but did not report that they were victims or make comments suggesting possible bias against the defendants. See, Juror 29 (Skilling is “[n]ot an honest man”); Juror 104 (Skilling “knows more than he’s admitting”); Juror 211 (“I believe he was involved in wrong doings”); Juror 219 (“So many people lost their life savings because of the dishonesty of some members of the executive team”; Skilling was “[t]oo aggressive w[ith] accounting”); Juror 2 (“With his level of control and power, hard to believe that he was unaware and not responsible in some way”); Juror 240 (Skilling “[s]eems to be very much involved in criminal goings on”); Juror 255 (“[T]housands of people were taken advantage of by executives at Enron”; Skilling is “arrogant”; “Skilling was Andrew Fastow’s immedi­ ate superior. Fastow has plead[ed] guilty to felony charges. I believe Skilling was aware of Fastow’s illegal behavior”); Juror 23 (“Nice try resigning months before the collaps[e], but again, he had to know what was going on”); Juror 22 (Skilling “[k]new he was getting out before the [d]am [b]roke”); Juror 292 (Skilling “[b]ailed out when he knew Enron was going down”); Juror 315 (“[H]ow could they not know and they seem to be lying about some things”); Juror 328 (“They should be held responsible as officers of this company for what happened”); Juror 350 (“I believe he greatly misused his power and affected hun­ dreds of lives as a result”; “I believe they are all guilty. Their ‘doings’ affected not only those employed by Enron but many others as well”); Juror 30 (“I seem to remember him trying to claim to have mental or emotional issues that would remove him from any guilt. I think that is deceitful. It seems as though he is a big player in the downfall”); Juror 38 (“I believe he knew, and certainly should have known as the CEO, that illegal and improper [activities] were rampant in Enron”; “I believe all of them were instrumental, and were co-conspirators, in the massive fraud perpetrated at Enron”). Skilling’s Renewed Venue Motion. 8 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. plea wreaks havoc for Lay, Skilling.” Record 149, n. 13; see also (quoting a former U. S. attorney who de­ scribed the plea as “a serious blow to the defense”). A Chronicle editorial opined that “Causey’s admission of securities fraud makes less plausible Lay’s claim that most of the guilty pleas were the result of prosecutorial pressure rather than actual wrongdoing.” With the trial date quickly approaching, Skilling re­ newed his change-of-venue motion, arguing that both the questionnaire responses and the Causey guilty plea con­ firmed that he could not receive a fair trial in Houston. In the alternative, Skilling asserted that “defendants are entitled to a more thorough jury selection process than currently envisioned by the [c]ourt.” at 1. The court had announced its intention to question individual jurors at the bench with one attorney for each side pre­ sent, and to complete the voir dire in a single day. See, at 11804–11805, 11808. Skilling proposed, inter alia, that defense counsel be afforded a greater role in questioning, at 14; that jurors be questioned pri­ vately in camera or in a closed courtroom where it would be easier for counsel to consult with their colleagues, clients, and jury consultants, at 10–12; and that the court “avoid leading questions,” which “tend to [e]licit affirmative responses from prospective jurors that may not reflect their actual views,” at 12. At a minimum, Skilling asserted, the court should grant a continuance of at least 30 days and send a revised ques­ tionnaire to a new group of prospective jurors. at 14–15. The District Court denied Skilling’s motion without a hearing, stating in a brief order that it was “not persuaded that the evidence or arguments urged by defendants establish that pretrial publicity and/or community preju­ dice raise a presumption of inherent jury prejudice.” at 14115. According to the court, the “jury questionnaires Cite as: 51 U. S. (10) 9 Opinion of SOTOMAYOR, J. sent to the remaining members of the jury panel and the court’s voir dire examination of the jury panel provide adequate safeguards to defendants and will result in the selection of a fair and impartial jury in this case.” at 14115–1411. The court did agree to delay the trial by two weeks, until January 30, 0. The coming trial featured prominently in local news outlets. A front-page, eve-of-trial story in the Chronicle described “the hurt and anger and resentment” that had been “churn[ing] inside” Houstonians since Enron’s col­ lapse. Again criticizing Lay and Skilling for offering a “doofus defense” (“a plea of not guilty by reason of empty-headedness”), the paper stated that “Lay and Skilling took hundreds of millions in compensation yet now fail to accept the responsibility that went with it.” The article allowed that the defendants’ guilt, “though perhaps widely assumed, remains even now an assertion. A jury now takes up the task of deciding whether that assertion is valid.” The next paragraph, however, assured readers that “it’s normal for your skin to crawl when Lay or Skilling claim with doe­ eyed innocence that they were unaware that something was amiss at Enron. The company’s utter failure belies the claim.” ; see also (declaring that Lay and Skilling would “have to offer a convincing explanation for how executives once touted as corporate geniuses could be so much in the dark about the illegal activities and deceptive finances of their own company”). It is against this backdrop of widespread community impact and pervasive pretrial publicity that jury selection in Skilling’s case unfolded. Approximately 10 prospective jurors appeared for voir dire at a federal courthouse lo­ cated “about six blocks from Enron’s former headquar­ ters.” Addressing them as a group, the District Court began by briefly describing the case and 10 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. providing a standard admonition about the need to be fair and impartial and to decide the case based solely on the trial evidence and jury instructions. The court then asked whether anyone had “any reservations about your ability to conscientiously and fairly follow these very important rules.” App. 815a. Two individuals raised their hands and were called forward to the bench. One told the court that he thought Lay and Skilling “knew exactly what they were doing” and would have to prove their innocence. at 818a–819a. The second juror, who had stated on his written questionnaire that he held no opinion that would preclude him from being impartial, declared that he “would dearly love to sit on this jury. I would love to claim responsibility, at least 1⁄12 of the responsibility, for putting these sons of bitches away for the rest of their lives.” at 819a–8a. The court excused both jurors for cause. The court proceeded to question individual jurors from the bench. As the majority recounts, ante, at –8, the court asked them a few general yes/no questions about their exposure to Enron-related news, often variations of, “Do you recall any particular articles that stand out that you’ve read about the case?” App. 850a. The court also asked about questionnaire answers that suggested bias, focusing mainly on whether, notwithstanding seemingly partial comments, the prospective jurors believed they “could be fair” and “put the government to its proof.” at 852a. Counsel were permitted to follow up on issues raised by the court. The court made clear, however, that its patience would be limited, see, at 89a, and questioning tended to be brief—generally less than five minutes per person. Even so, it exposed disqualifying biases among several prospective jurors who had earlier expressed no concerns about their ability to be fair. —————— See App. 4a (Juror 43) (expressed the view that the defendants Cite as: 51 U. S. (10) 11 Opinion of SOTOMAYOR, J. Once it identified 38 qualified prospective jurors, the court allowed the defense and Government to exercise their allotted peremptory challenges. This left 12 jurors and 4 alternates, who were sworn in and instructed, for the first time, “not [to] read anything dealing with the case or listen to any discussion of the case on radio or television or access any Internet sites that may deal with the case” and to “inform your friends and family members that they should not discuss with you anything they may have read or heard about this case.” at a. Start to finish, the selection process took about five hours. Skilling’s trial commenced the next day and lasted four months. After several days of deliberations, the jury found Skilling guilty of conspiracy, 12 counts of securities fraud, 5 counts of making false representations to audi­ tors, and 1 count of insider trading; it acquitted on 9 in­ sider trading counts. The jury found Lay guilty on all counts. On appeal, Skilling asserted that he had been denied his constitutional right to a fair trial before an impartial jury. Addressing this claim, the Court of Appeals began by disavowing the District Court’s findings concerning “com­ munity hostility.” There was, the court concluded, “suffi­ cient inflammatory pretrial material to require a finding of presumed prejudice, especially in light of the immense volume of coverage.” “[P]rejudice was [also] inherent in an alleged co-conspirator’s well­ —————— “stole money” from their employees); at 922a (Juror 55) (admitted that she “lean[ed] towards prejudging” the defendants); at 94a (Juror 1) (stated that she would place the burden of proof on the defendants); at 954a–90a (Juror 5) ( that she could not set aside her view that there was fraud at Enron); at 1003a–100a (Juror 104) (stated that she questioned the defendants’ innocence and that she “would be very upset with the government if they could not prove their case”); at 1008a (Juror 112) (expressed that the view that the defendants were guilty). 12 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. publicized decision to plead guilty on the eve of ” The Court of Appeals, moreover, faulted the District Court for failing to “consider the wider context.” at “[I]t was not enough for the court merely to assess the tone of the news reporting. The evaluation of the volume and nature of reporting is merely a proxy for the real inquiry: whether there could be a fair trial by an impartial jury that was not influenced by outside, irrele­ vant sources.” According to the Court of Appeals, “[t]he district court seemed to overlook that the prejudice came from more than just pretrial media publicity, but also from the sheer number of victims.” Having determined that “Skilling was entitled to a presumption of prejudice,” the Court of Appeals proceeded to explain that “the presumption is rebuttable, and the government may demonstrate from the voir dire that an impartial jury was actually impanelled.” (in­ ternal quotation marks omitted). Describing the voir dire as “exemplary,” “searching,” and “proper and thorough,” the court concluded that “[t]he government [had] met its burden of showing that the actual jury that convicted Skilling was impartial,” at 54–55. On this basis, the Court of Appeals rejected Skilling’s claim and affirmed his convictions. II The Sixth Amendment right to an impartial jury and the due process right to a fundamentally fair trial guaran­ tee to criminal defendants a trial in which jurors set aside preconceptions, disregard extrajudicial influences, and decide guilt or innocence “based on the evidence presented in court.” ; see also Community passions, often inflamed by adverse pretrial publicity, can call the integrity of a trial into doubt. In Cite as: 51 U. S. (10) 13 Opinion of SOTOMAYOR, J. some instances, this Court has observed, the hostility of the community becomes so severe as to give rise to a “pre­ sumption of [juror] prejudice.” 4 U.S. 1025, 1031 The Court of Appeals incorporated the concept of pre­ sumptive prejudice into a burden-shifting framework: Once the defendant musters sufficient evidence of com­ munity hostility, the onus shifts to the Government to prove the impartiality of the jury. The majority similarly envisions a fixed point at which public passions become so intense that prejudice to a defendant’s fair-trial rights must be presumed. The majority declines, however, to decide whether the presumption is rebuttable, as the Court of Appeals held. This Court has never treated the notion of presumptive prejudice so formalistically. Our decisions instead merely convey the commonsense understanding that as the tide of public enmity rises, so too does the danger that the preju­ dices of the community will infiltrate the jury. The under­ lying question has always been this: Do we have confi­ dence that the jury’s verdict was “induced only by evidence and argument in open court, and not by any outside influ­ ence, whether of private talk or public print”? Patterson v. Colorado ex rel. Attorney General of Colo., 5 U.S. 4, 42 (190). The inquiry is necessarily case specific. In selecting a jury, a trial court must take measures adapted to the intensity, pervasiveness, and character of the pretrial publicity and community animus. Reviewing courts, meanwhile, must assess whether the trial court’s proce­ dures sufficed under the circumstances to keep the jury free from disqualifying bias. Cf. 421 U.S. 94, 99 (scrutinizing the record for “any indications in the totality of circumstances that peti­ tioner’s trial was not fundamentally fair”). This Court’s precedents illustrate the sort of steps required in different 14 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. situations to safeguard a defendant’s constitutional right to a fair trial before an impartial jury. At one end of the spectrum, this Court has, on rare occasion, confronted such inherently prejudicial circum­ stances that it has reversed a defendant’s conviction “without pausing to examine the voir dire examination of the members of the jury.” v. Louisiana, 33 U.S. (193). In repeated television broadcasts of the defendant’s confession to murder, rob­ bery, and kidnaping so thoroughly poisoned local senti­ ment as to raise doubts that even the most careful voir dire could have secured an impartial jury. A change of venue, the Court determined, was thus the only way to assure a fair ; see also W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure p. 24 (3d ed. 0) (hereinafter LaFave) (“The best reading of is that the Court there recognized that prejudicial publicity may be so inflammatory and so pervasive that the voir dire simply cannot be trusted to fully reveal the likely prejudice among prospective jurors”). As the majority describes, ante, at 14, this Court reached similar conclusions in Estes v. Texas, 381 U.S. 532 and These cases involved not only massive pretrial publicity but also media disruption of the trial process itself. Rejecting the argu­ ment that the defendants were not entitled to relief from their convictions because they “ha[d] established no isola­ table prejudice,” the Court described the “untoward cir­ cumstances” as “inherently suspect.” Estes, 381 U.S., at 542, 544. It would have been difficult for the jurors not to have been swayed, at least subconsciously, by the “bed­ lam” that surrounded them. 384 U.S., Criticizing the trial courts’ failures “to protect the jury from outside influence,” the Court stressed that, “where there is a reasonable likelihood that prejudi­ cial news prior to trial will prevent a fair trial, the judge Cite as: 51 U. S. (10) 15 Opinion of SOTOMAYOR, J. should continue the case until the threat abates, or trans­ fer it to another [venue] not so permeated with publicity.” Estes and thus applied ’s insight that in particularly extreme circumstances even the most rigorous voir dire cannot suffice to dispel the reasonable likelihood of jury bias. Apart from these exceptional cases, this Court has declined to discount voir dire entirely and has instead examined the particulars of the jury selection process to determine whether it sufficed to produce a jury untainted by pretrial publicity and community animus. The Court has recognized that when antipathy toward a defendant pervades the community there is a high risk that biased jurors will find their way onto the panel. The danger is not merely that some prospective jurors will deliberately hide their prejudices, but also that, as “part of a commu­ nity deeply hostile to the accused,” “they may unwittingly [be] influenced” by the fervor that surrounds them. Mur To assure an impartial jury in such adverse circumstances, a trial court must carefully con­ sider the knowledge and attitudes of prospective jurors and then closely scrutinize the reliability of their assur­ ances of fairness. Cf. 29 (1992) (“[P]art of the guarantee of a defendant’s right to an impartial jury is an adequate voir dire to identify unqualified jurors”). offers an example of a case in which the trial court’s voir dire did not suffice to counter the “wave of public passion” that had swept the community prior to the defendant’s The local news media had “extensively covered” the crimes (a murder spree), “arous[ing] great excitement and indignation.” Following ’s arrest, the press “blanketed” the community with “a bar­ rage of newspaper headlines, articles, cartoons and pic­ tures” communicating numerous unfavorable details about 1 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. including that he had purportedly confessed. at 25. Nearly 90 percent of the 430 prospective jurors ex­ amined during the trial court’s voir dire “entertained some opinion as to guilt—ranging in intensity from mere suspi­ cion to absolute certainty.” Of the 12 jurors seated, 8 “thought petitioner was guilty,” although “each that notwithstanding his opinion he could ren­ der an impartial verdict.” 24. Despite the seated jurors’ assurances of impartiality, this Court invalidated ’s conviction for want of due process. “It is not required,” this Court declared, “that the jurors be totally ignorant of the facts and issues involved. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” at 22–. The Court empha­ sized, however, that a juror’s word on this matter is not decisive, particularly when “the build-up of prejudice [in the community] is clear and convincing.” Many of ’s jurors, the Court noted, had been influ­ enced by “the pattern of deep and bitter prejudice shown to be present throughout the community.” The Court did not “doubt [that] each juror was sincere when he said that he would be fair and impartial to [], but [w]here so many, so many times, admitted prejudice, such a state­ ment of impartiality can be given little weight.” at The media coverage and community animosity in was particularly intense. In three subsequent cases, this Court recognized that high-profile cases may generate substantial publicity without stirring similar public pas­ sions. The jury selection process in such cases, the Court clarified, generally need not be as exhaustive as in a case such as So long as the trial court conducts a rea­ sonable inquiry into extrajudicial influences and the abil­ ity of prospective jurors to presume innocence and render Cite as: 51 U. S. (10) 1 Opinion of SOTOMAYOR, J. a verdict based solely on the trial evidence, we would generally have no reason to doubt the jury’s impartiality.8 The first of these cases, Mur, involved a well-known defendant put on trial for a widely publi­ cized Miami Beach robbery. The state trial court denied his motion for a change of venue and during voir dire excused of the 8 prospective jurors for cause. Distin­ guishing this Court saw no indication in the voir dire of “such hostility to [Mur] by the jurors who served in his trial as to suggest a partiality that could not be laid aside.” Although some jurors “had a vague recollection of the robbery with which [Mur­ ] was charged and each had some knowledge of [his] past crimes,” “none betrayed any belief in the relevance of [Mur’s] past to the present case.” ; see also ib n. 4 (contrasting a juror’s “mere familiarity with [a defen­ dant] or his past” with “an actual predisposition against him”). “[T]hese indicia of impartiality,” the Court sug­ gested, “might be disregarded in a case where the general atmosphere in the community or courtroom is sufficiently inflammatory, but the circumstances surrounding [Mur­ ’s] trial [were] not at all of that variety.” In a second case, Yount, the defendant was granted a new trial four years after being convicted of murder. He requested a change of venue, citing pretrial publicity and the widespread local knowledge that he had previously been convicted and had made confessions that would be inadmissible in court. The state trial court denied Yount’s motion and seated a jury following a 10­ day voir dire of 292 prospective jurors. Nearly all of the —————— 8 Of course, even if the jury selection process is adequate, a trial court violates a defendant’s right to an impartial jury if it erroneously denies a for-cause challenge to a biased venire member who ultimately sits on the jury. See, United 528 U.S. 31 (00) (“[T]he seating of any juror who should have been dismissed for cause would require reversal”). 18 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. prospective jurors had heard of the case, and percent “admitted they would carry an opinion into the jury box.” Declining to grant relief on federal habeas review, this Court stressed the significant interval be­ tween Yount’s first trial—when “adverse publicity and the community’s sense of outrage were at their height”—and his second trial, which “did not occur until four years later, at a time when prejudicial publicity was greatly dimin­ ished and community sentiment had softened.” at 1032. While 8 of the 14 seated jurors and alternates had “at some time formed an opinion as to Yount’s guilt,” the “particularly extensive” voir dire confirmed that “time had weakened or eliminated any” bias they once may have harbored. –1030, 10, n. 10, 1033. Accord­ ingly, this Court concluded, “the trial court did not commit manifest error in finding that the jury as a whole was impartial.” This Court most recently wrestled with the issue of pretrial publicity in Mu’ stood accused of murdering a woman while out of prison on a work detail. Citing 4 newspaper articles about the crime, Mu’ moved for a change of venue. The state trial court deferred its ruling and at­ tempted to seat a jury. During group questioning, 1 of the 2 prospective jurors that they had heard about the case from media or other sources. Dividing these prospective jurors into panels of four, the court asked further general questions about their ability to be fair given what they had heard or read. One juror an­ swered equivocally and was dismissed for cause. The court refused Mu’’s request to ask more specific ques­ tions “relating to the content of news items that potential jurors might have read or seen.” Of the 12 persons who served on the jury, “8 had at one time or another read or heard something about the case. None had that he had formed an opinion about the Cite as: 51 U. S. (10) 19 Opinion of SOTOMAYOR, J. case or would be biased in any way.” Rejecting Mu’’s attempt to analogize his case to this Court observed that “the cases differ both in the kind of community in which the coverage took place and in extent of media coverage.” Mu’’s offense occurred in the metropolitan Washington, D. C., area, “which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year.” While the crime garnered “substantial” pretrial publicity, the coverage was not as pervasive as in and “did not contain the same sort of damaging information.” –430. Moreover, in con­ trast to the seated jurors uniformly disclaimed having ever formed an opinion about the case. Given these circumstances, this Court rebuffed Mu’’s asser­ tion that the trial court committed constitutional error by declining to “make precise inquiries about the contents of any news reports that potential jurors have read.” 500 U.S., at The Court stressed, however, that its ruling was context-specific: “Had the trial court in this case been confronted with the ‘wave of public passion’ engendered by pretrial publicity that occurred in connection with ’s trial, the Due Process Clause of the Fourteenth Amend­ ment might well have required more extensive examina­ tion of potential jurors than it undertook here.” at 429. III It is necessary to determine how this case compares to our existing fair-trial precedents. Were the circumstances so inherently prejudicial that, as in even the most scrupulous voir dire would have been “but a hollow formal­ ity” incapable of reliably producing an impartial jury? 33 U.S., at 2. If the circumstances were not of this charac­ ter, did the District Court conduct a jury selection process sufficiently adapted to the level of pretrial publicity and SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. community animus to ensure the seating of jurors capable of presuming innocence and shutting out extrajudicial influences? A Though the question is close, I agree with the Court that the prospect of seating an unbiased jury in Houston was not so remote as to compel the conclusion that the District Court acted unconstitutionally in denying Skilling’s mo­ tion to change venue. Three considerations lead me to this conclusion. First, as the Court observes, ante, at 1, the size and diversity of the Houston community make it probable that the jury pool contained a nontrivial number of persons who were unaffected by Enron’s collapse, neu­ tral in their outlook, and unlikely to be swept up in the public furor. Second, media coverage of the case, while ubiquitous and often inflammatory, did not, as the Court points out, ante, at 1, contain a confession by Skilling or similar “smoking-gun” evidence of specific criminal acts. For many prospective jurors, the guilty plea of codefen­ dant and alleged co-conspirator Causey, along with the pleas and convictions of other Enron executives, no doubt suggested guilt by association. But reasonable minds exposed to such information would not necessarily have formed an indelible impression that Skilling himself was guilty as charged. Cf. (a major­ ity of the county’s residents were “exposed repeatedly and in depth to the spectacle of personally confessing in detail to the crimes with which he was later to be charged”). Third, there is no suggestion that the court­ room in this case became, as in Estes and a “carnival” in which the “calmness and solemnity” of the proceedings was compromised. 384 U.S., at 358, 350 It is thus appropriate to examine the voir dire and determine whether it instills confidence in the impartiality of the Cite as: 51 U. S. (10) 21 Opinion of SOTOMAYOR, J. jury actually selected.9 B In concluding that the voir dire “adequately detect[ed] and defuse[d] juror bias,” ante, at the Court downplays the extent of the community’s antipathy toward Skilling and exaggerates the rigor of the jury selection process. The devastating impact of Enron’s collapse and the relent­ less media coverage demanded exceptional care on the part of the District Court to ensure the seating of an im­ partial jury. While the procedures employed by the Dis­ trict Court might have been adequate in the typical high­ profile case, they did not suffice in the extraordinary circumstances of this case to safeguard Skilling’s constitu­ tional right to a fair trial before an impartial jury. —————— 9 Whether the District Court abused its discretion in declining to change venue pursuant to the Federal Rules of Criminal Procedure is a different question. See Fed. Rule Crim. Proc. 21(a) (“Upon the defen­ dant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there”). As this Court has its supervisory powers confer “more latitude” to set standards for the conduct of trials in federal courts than in state courts. While the circumstances may not constitutionally compel a change of venue “without pausing to examine the voir dire,” v. Louisiana, 33 U.S. (193), the widely felt sense of victimhood among Houstonians and the community’s deep-seated animus toward Skilling certainly meant that the task of reliably identifying untainted jurors posed a major chal­ lenge, with no guarantee of success. It likely would have been far easier to empanel an impartial jury in a venue where the Enron story had less salience. I thus agree with the Court of Appeals that “[i]t would not have been imprudent for the [District] [C]ourt to have granted Skilling’s transfer motion.” (CA5 09). Skilling, however, likely forfeited any Rule 21 or supervisory powers claim by failing to present it either in his opening brief before the Fifth Circuit, see or in his petition for certiorari, cf. ante, at 12, n. 11. 22 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. In conducting this analysis, I am mindful of the “wide discretion” owed to trial courts when it comes to jury­ related issues. Mu’, ; cf. ante, at – 21. Trial courts are uniquely positioned to assess public sentiment and the credibility of prospective jurors. Prox­ imity to events, however, is not always a virtue. Persons in the midst of a tumult often lack a panoramic view. “[A]ppellate tribunals [thus] have the duty to make an independent evaluation of the circumstances.” 384 U.S., at In particular, reviewing courts are well qualified to inquire into whether a trial court implemented procedures adequate to keep community prejudices from infecting the jury. If the jury selection process does not befit the circumstances of the case, the trial court’s rulings on impartiality are necessarily called into doubt. See –30 (plurality opinion))); see also Mu’, 500 U.S., at 1 (“Our willingness to accord substantial deference to a trial court’s finding of juror impartiality rests on our expecta­ tion that the trial court will conduct a sufficient voir dire to determine the credibility of a juror professing to be impartial”). 1 As the Court of Appeals apprehended, the District Court gave short shrift to the mountainous evidence of public hostility. For Houstonians, Enron’s collapse was an event of once-in-a-generation proportions. Not only was the volume of media coverage “immense” and frequently in­ temperate, but “the sheer number of victims” created a climate in which animosity toward Skilling ran deep and Cite as: 51 U. S. (10) 23 Opinion of SOTOMAYOR, J. the desire for conviction was widely shared. 554 F.3d, at 559–. The level of public animus toward Skilling dwarfed that present in cases such as Mur and Mu’. The pre­ trial publicity in those cases consisted of dozens of news reports, most of which were “largely factual in nature.” Mur, 421 U.S., There was no indication that the relevant communities had been captivated by the cases or had adopted fixed views about the defendants. In contrast, the number of media reports in this case reached the tens of thousands, and full-throated denunciations of Skilling were common. The much closer analogy is thus to which similarly featured a “barrage” of media cover­ age and a “huge wave of public passion,” 3 U.S., at 25, although even that case did not, as here, involve direct harm to entire segments of the community.10 Attempting to distinguish the majority suggests that Skilling’s economic offenses were less incendiary than ’s violent crime spree and that “news stories about Enron contained nothing resembling the horrifying infor­ mation rife in reports about ’s rampage of robberies and murders.” Ante, 8. Along similar lines, the Dis­ trict Court described “the facts of this case [as] neither heinous nor sensational.” App. to Brief for United States 10a. The majority also points to the four years that passed between Enron’s declaration of bankruptcy and the start of Skilling’s trial, asserting that “the decibel level of media attention diminished somewhat” over this time. Ante, at 1. Neither of these arguments is persuasive. First, while violent crimes may well provoke widespread community outrage more readily than crimes involving monetary loss, economic crimes are certainly capable of —————— 10 One of Skilling’s experts noted that, “[i]n cases involving 0 or more articles, trial judges granted a change of venue 59% of the time.” App. ¶30, p. 11a. 24 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. rousing public passions, particularly when thousands of unsuspecting people are robbed of their livelihoods and retirement savings. Indeed, the record in this case is replete with examples of visceral outrage toward Skilling and other Enron executives. See, Record 3994 (front-page, eve-of-trial story describing “the hurt and anger and resentment churn[ing] inside” the people of Houston). Houstonians compared Skilling to, among other things, a rapist, an axe murderer, and an Al Qaeda terror­ ist.11 As one commentator observed, “[i]t’s a sign of how shocked Houstonians are about Enron’s ignominious demise that Sept. 11 can be invoked—and is frequently— to explain the shock of the company’s collapse.” 3 Supp. Record 544. The bad blood was so strong that Skilling and other top executives hired private security to protect themselves from persons inclined to take the law into their own hands. See, App. 1154a (“After taking the tem­ perature of Enron’s victims, [a local lawyer] says the Enron executives are wise to take security precautions”). Second, the passage of time did little to soften commu­ nity sentiment. Contrary to the Court’s suggestion, ante, at 1, this case in no way resembles Yount, where, by the time of the defendant’s retrial, “prejudicial publicity [had] greatly diminished” and community animus had signifi­ —————— 11 See, n. 42 (“I’m livid, absolutely livid I have lost my entire friggin’ retirement to these people. They have raped all of us” ); App. 382a (“Hurt­ ing that many elderly people so severely is, I feel, the equivalent of being an axe murderer. His actions were just as harmful as an axe murderer to the [community]” (alteration in original)); at 1152a– 1153a (“Not having the stuff of suicide bombers, Enron’s executive pilots took full advantage of golden parachutes to bail out of their high­ flying corporate jet after setting the craft on a course to financial oblivion. In a business time frame, Enron pancaked faster than the twin towers”); at 113a (noting that “Skilling’s picture turned up alongside Osama bin Laden’s on ‘Wanted’ posters inside the company headquarters”). Cite as: 51 U. S. (10) 25 Opinion of SOTOMAYOR, J. cantly 4 U.S., ; see also (in the months preceding the defendant’s retrial, newspaper reports about the case averaged “less than one article per month,” and public interest was “minimal”). The Enron story was a continuing saga, and “publicity remained intense throughout.” 554 F.3d, at Not only did Enron’s downfall generate wall-to-wall news coverage, but so too did a succession of subsequent Enron-related events.12 Of particular note is the highly publicized guilty plea of codefendant Causey just weeks before Skilling’s If anything, the time that elapsed between the bankruptcy and the trial made the task of seating an unbiased jury more difficult, not less. For many members of the jury pool, each highly publicized Enron-related guilty plea or conviction likely served to increase their certainty that Skilling too had engaged in—if not master­ minded—criminal acts, particularly given that the media —————— 12 Among the highlights: In 02, Skilling testified before Congress, and other Enron executives invoked their Fifth Amendment rights; Enron auditor Arthur Andersen was indicted, tried, convicted, and sentenced on charges of obstruction of justice; the Enron Task Force charged Enron CFO and Skilling-protégé Andrew Fastow with fraud, money laundering, and other crimes; and at least two Enron employees pleaded guilty on fraud and tax charges. In 03, the Enron Task Force indicted numerous Enron employees, including Ben Glisan, Jr. (the company’s treasurer), Lea Fastow (wife of Andrew and an assistant treasurer), and more than half a dozen executives of Enron Broadband Services; several Enron employees entered guilty pleas and received prison sentences; and Enron filed its bankruptcy reorganization plan. In 04, Andrew and Lea Fastow both pleaded guilty; Skilling and Causey were indicted in February; a superseding indictment adding Lay was filed in July; a number of additional Enron employees entered guilty pleas; and former Enron employees and Merrill Lynch bankers were defendants in a -week trial in Houston concerning an Enron deal involving the sale of Nigerian barges. In 05, a 3-month trial was held in Houston for five executives of Enron Broadband Services; various pretrial proceedings occurred in the run up to the trial of Skilling, Lay, and Causey; and, three weeks before the scheduled trial date, Causey pleaded guilty to securities fraud. 2 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. coverage reinforced this view. See at –8. The trial of Skilling and Lay was the culmination of all that had come before. See Record 40002 (noting that “prosecutors followed the classic pattern of working their way up through the ranks”). As the Chronicle put it in July 05, shortly after the trial of several Enron Broadband Services executives ended without convictions, “The real trial, the true measure of justice in the Enron saga, begins in Janu­ ary. Let the small fry swim free if need be. We’ve got bigger fish in need of frying.” App. 140a (paragraph breaks omitted); see also (“From the beginning, the Enron prosecution has had one true measure of success: Lay and Skilling in a cold steel cage”). Any doubt that the prevailing mindset in the Houston community remained overwhelmingly negative was dis­ pelled by prospective jurors’ responses to the written questionnaires. As previously at 5–, more than one-third of the prospective jurors either knew victims of Enron’s collapse or were victims themselves, and two-thirds gave responses suggesting an antidefen­ dant bias. In many instances their contempt for Skilling was palpable. See nn. 4, Only a small fraction of the prospective jurors raised no red flags in their re­ sponses. And this was before Causey’s guilty plea and the flurry of news reports that accompanied the approach of One of Skilling’s experts, a political scientist who had studied pretrial publicity “for over 35 years” and consulted in more than 0 high-profile cases (in which he had recommended against venue changes more often than not), “c[a]me to the conclusion that the extent and depth of bias shown in these questionnaires is the highest or at least one of the very highest I have ever encountered.” App. ¶¶2, pp. 83a, 85a (emphasis deleted). 2 Given the extent of the antipathy evident both in the Cite as: 51 U. S. (10) 2 Opinion of SOTOMAYOR, J. community at large and in the responses to the written questionnaire, it was critical for the District Court to take “strong measures” to ensure the selection of “an impartial jury free from outside influences.” 384 U.S., at As this Court has recognized, “[i]n a community where most veniremen will admit to a disqualifying preju­ dice, the reliability of the others’ protestations may be drawn into question.” Mur, ; see also (“ ‘[A]ny judge who has sat with juries knows that in spite of forms they are extremely likely to be impregnated by the envi­ roning atmosphere’ ” (quoting Frank v. Mangum, 23 U.S. 309, 9 (1915) (Holmes, J., dissenting))). Perhaps be­ cause it had underestimated the public’s antipathy toward Skilling, the District Court’s 5-hour voir dire was mani­ festly insufficient to identify and remove biased jurors.13 As an initial matter, important lines of inquiry were not —————— 13 The majority points out that the jury selection processes in the three previous Enron trials that had been held in Houston were simi­ larly brief. See ante, 3. The circumstances of those cases, however, were very different. In particular, the defendants had not been person­ ally subjected to anything approaching the withering public criticism that had been directed at Skilling and Lay. As earlier noted, see, 5–2, it was the trial of Skilling and Lay that was widely seen as the climactic event of the Enron saga. Accordingly, my conclu­ sion that the jury selection process in this unusual case did not suffice to select an impartial jury does not cast doubt on the adequacy of the processes used in the earlier Enron prosecutions. Moreover, in referencing the length of the voir dire in this case, I do not mean to suggest that length should be a principal measure of the adequacy of a jury selection process. Trial courts, including this one, should be commended for striving to be efficient, but they must always take care to ensure that their expeditiousness does not compromise a defendant’s fair-trial right. I also express no view with respect to court­ led versus attorney-led voir dire. Federal Rule of Criminal Procedure 24(a) gives district courts discretion to choose between these options, and I have no doubt that either is capable of producing an impartial jury even in high profile cases so long as the trial court assures that the scope of the voir dire is tailored to the circumstances. 28 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. pursued at all. The majority accepts, for instance, that “publicity about a codefendant’s guilty plea calls for in­ quiry to guard against actual prejudice.” Ante, at 19. Implying that the District Court undertook this inquiry, the majority states that “[o]nly two venire members re­ called [Causey’s] plea.” In fact, the court asked very few prospective jurors any questions directed to their knowledge of or feelings about that event.14 Considering how much news the plea generated, many more than two venire members were likely aware of it. The lack of ques­ tioning, however, makes the prejudicial impact of the plea on those jurors impossible to assess. The court also rarely asked prospective jurors to de­ scribe personal interactions they may have had about the case, or to consider whether they might have difficulty avoiding discussion of the case with family, friends, or colleagues during the course of the lengthy The tidbits of information that trickled out on these subjects provided cause for concern. In response to general media­ related questions, several prospective jurors volunteered that they had spoken with others about the case. Juror 4, for example, that her husband was the “news person,” that they had “talked about it,” that she had also heard things “from work,” and that what she heard was “all negative, of course.” App. 948a. The court, however, did not seek elaboration about the substance of these interactions. Surely many prospective jurors had similar —————— 14 Juror 33 brought up the plea in response to the District Court’s question about whether he “recall[ed] listening to any particular programs about the case.” App. 888a. Juror 9, meanwhile, told the court that he read the “whole” Houston Chronicle every day, including “all the articles about Enron.” at 992a. The court, however, did not ask any questions designed to elicit information about the Causey plea. Instead, Juror 9 remarked on the plea only after Skilling’s counsel managed to squeeze in a follow-up as to whether he had “read about any guilty pleas in this case over the last month or two.” at 993a. Cite as: 51 U. S. (10) 29 Opinion of SOTOMAYOR, J. conversations, particularly once they learned upon receiv­ ing the written questionnaire that they might end up on Skilling’s jury. Prospective jurors’ personal interactions, moreover, may well have left them with the sense that the community was counting on a conviction. Yet this too was a subject the District Court did not adequately explore. On the few occasions when prospective jurors were asked whether they would feel pressure from the public to convict, they acknowledged that it might be difficult to return home after delivering a not-guilty verdict. Juror 5, for in­ stance, told the court, “I think a lot of people feel that they’re guilty. And maybe they’re expecting something to come out of this ” at 95a. It would be “tough,” she recognized, “to vote not guilty and go back into the community.” at 95a; see also at 852a (Juror 10) (admitting “some hesitancy” about “telling people the government didn’t prove its case”). With respect to potential nonmedia sources of bias, the District Court’s exchange with Juror 101 is particularly troubling.15 Although Juror 101 responded in the negative when asked whether she had “read anything in the news­ paper that [stood] out in [her] mind,” she volunteered that she “just heard that, between the two of them, [Skilling and Lay] had $43 million to contribute for their case and that there was an insurance policy that they could collect on, also.” at 998a. This information, she explained, “was just something I overheard today—other jurors talking.” It seemed suspicious, she intimated, “to have an insurance policy ahead of time.” at 999a. The court advised her that “most corporations provide insur­ ance for their officers and directors.” The court, however, did not investigate the matter further, even —————— 15 Portions of the voir dire transcript erroneously refer to this pro­ spective juror as “Juror 110.” See, at 99a. 30 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. though it had earlier instructed prospective jurors not to talk to each other about the case. at 843a. It is thus not apparent whether other prospective jurors also over­ heard the information and whether they too believed that it reflected unfavorably on the defendants; nor is it appar­ ent what other outside information may have been shared among the venire members. At the very least, Juror 101’s statements indicate that the court’s questions were failing to bring to light the extent of jurors’ exposure to poten­ tially prejudicial facts and that some prospec- tive jurors were having difficulty following the court’s directives. The topics that the District Court did cover were ad­ dressed in cursory fashion. Most prospective jurors were asked just a few yes/no questions about their general exposure to media coverage and a handful of additional questions concerning any responses to the written ques­ tionnaire that suggested bias. In many instances, their answers were unenlightening.1 Yet the court rarely sought to draw them out with open-ended questions about their impressions of Enron or Skilling and showed limited patience for counsel’s followup efforts. See, at —————— 1 Thecourt’s exchange with Juror (who sat on the jury) is typical: “Q. Do you remember reading any particular articles about this case or Mr. Lay or Mr. Skilling? “A. Not until just recently this week, but nothing— “Q. And there have been a lot of articles this week. “A. Yeah. “Q. Do you recall any particular articles you’ve read in the last week or so? “A. Not word for word, no. “Q. Did you read all the articles in the Sunday “Chronicle”? “A. Some of them. “Q. Which ones do you remember reading? “A. The one about the trial, I think, and how the trial was going to work.” at 83a–84a. Cite as: 51 U. S. (10) 31 Opinion of SOTOMAYOR, J. 89a, 9a.1 When prospective jurors were more forth­ coming, their responses tended to highlight the ubiquity and negative tone of the local news coverage, thus under­ scoring the need to press the more guarded members of the venire for further information.18 Juror 1, for exam­ ple, mentioned hearing a radio program that very morning in which a former Enron employee compared persons who did not think Skilling was guilty to Holocaust deniers. See at 83a (“[H]e said he thought that he would find them guilty automatically if he was on the jury because he said that it would be worse than a German trying to say that they didn’t kill the Jews”).19 Other jurors may well have encountered, and been influenced by, similarly incendiary rhetoric. These deficiencies in the form and content of the voir —————— 1 The majority’s criticism of Skilling’s counsel for failing to ask ques­ tions of many of the prospective jurors, cf. ante, 3–24, is thus misplaced. Given the District Court’s express warning early in the voir dire that it would not allow counsel “to ask individual questions if [they] abuse[d]” that right, App. 89a, counsel can hardly be blamed for declining to test the court’s boundaries at every turn. Moreover, the court’s perfunctory exchanges with prospective jurors often gave counsel no clear avenue for further permissible inquiry. 18 Although the District Court underestimated the extent of the com­ munity hostility, it was certainly aware of the ubiquity of the pretrial publicity, acknowledging that “all of us have been exposed to substan­ tial media attention about this case.” at 841a. The court even made an offhand remark about one of the prior Enron prosecutions, “the Nigerian barge case,” apparently expecting that the prospective jurors would understand the reference. at 840a. 19 Taking a more defendant-favorable line than most prospective ju­ rors, Juror 1 stated that he “thought the guy [on the radio] was pretty narrow minded,” that “everyone should be considered innocent totally until they get a chance to come [to] court,” and that the Government might have been overzealous in some of its Enron-related prosecutions. at 83a–84a. He added, however, that he “believe[d] there was probably some accounting fraud [at Enron].” at 84a. The District Court denied the Government’s request to remove Juror 1 for cause, but he did not ultimately sit on the jury. 32 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. dire questions contributed to a deeper problem: The Dis­ trict Court failed to make a sufficiently critical assessment of prospective jurors’ assurances of impartiality. Although the Court insists otherwise, ante, the voir dire tran­ script indicates that the District Court essentially took jurors at their word when they promised to be fair. In­ deed, the court declined to dismiss for cause any prospec­ tive juror who ultimately gave a clear assurance of impar­ tiality, no matter how much equivocation preceded it. Juror 29, for instance, wrote on her questionnaire that Skilling was “not an honest man.” App. 881a. During questioning, she acknowledged having previously thought the defendants were guilty, and she disclosed that she lost $50,000–$0,000 in her 401(k) as a result of Enron’s col­ lapse. at 880a, 883a. But she ultimately agreed that she would be able to presume innocence. at 881a, 884a. Noting that she “blame[d] Enron for the loss of her money” and appeared to have “unshakeable bias,” Skill­ ing’s counsel challenged her for cause. at 885a. The court, however, declined to remove her, stating that “she answered candidly she’s going to have an open mind now” and “agree[ing]” with the Government’s assertion that “we have to take her at her word.” at 885a–88a. As —————— The majority attempts to downplay the significance of Juror 29 by noting that she did not end up on the jury because Skilling used a peremptory challenge to remove her. See ante, at 30, n. 32. The majority makes a similar point with respect to other venire members who were not ultimately seated. See ante, 4, n. 24. The comments of these venire members, however, are relevant in assessing the impar­ tiality of the seated jurors, who were similarly “part of a community deeply hostile to the accused” and who may have been “unwittingly influenced by it.” ; see also Moreover, the fact that the District Court failed to remove persons as dubiously qualified as Juror 29 goes directly to the adequacy of its voir dire. If Juror 29 made it through to the end of the selection process, it is difficult to have confi­ dence in the impartiality of the jurors who sat, especially given how Cite as: 51 U. S. (10) 33 Opinion of SOTOMAYOR, J. this Court has made plain, jurors’ assurances of impartial­ ity simply are not entitled to this sort of talismanic signifi­ cance. See, Mur, (“[T]he juror’s assurances that he is equal to th[e] task cannot be disposi­ tive of the accused’s rights”); (“Where so many, so many times, admi[t] prejudice, a statement of impartiality can be given little weight”). Worse still, the District Court on a number of occasions accepted declarations of impartiality that were equivocal on their face. Prospective jurors who “hope[d]” they could presume innocence and did “not necessarily” think Skill­ ing was guilty were permitted to remain in the pool. App. 932a, 85a. Juror 1, for instance, wrote of Lay on her questionnaire, “Shame on him.” at 931a. Asked by the court about this, she stated that, “innocent or guilty, he was at the helm” and “should have known what was going on at the company.” ; see also at 9a (Skilling is “probably” “in the same boat as” Lay). The court then asked, “can you presume, as you start this trial, that Mr. Lay is innocent?” at 932a. She responded, “I hope so, but you know. I don’t know. I can’t honestly answer that one way or the other.” ; see also at 933a (“I bring in my past history. I bring in my biases. I would like to think I could rise above those, but I’ve never been in this situation before. So I don’t know how I could honestly answer that question one way or the other. I do have some concerns”). Eventually, however, Juror 1 answered “Yes” when the court asked if she would be able to acquit if she had “a reasonable doubt that the defen­ dants are guilty.” at 933a–9a. Challenging her for cause, defense counsel insisted that they had not received “a clear and unequivocal answer” about her ability to be —————— little is known about many of them. Cf. LaFave 88 (“The responses of those not seated casts light on the credibility of the seated jurors who were familiar with the same publicity”). SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. fair. The court denied the challenge, stating, “You know, she tried.” 3 The majority takes solace in the fact that most of the persons actually seated as jurors and alternates “specifi­ cally stated that they had paid scant attention to Enron­ related news.” Ante, 4–25, and n. 2.21 In context, however, these general declarations reveal little about the seated jurors’ actual knowledge or views or the possible pressure they might have felt to convict, and thus cannot instill confidence that the jurors “were not under [the] sway” of the prevailing community sentiment. Cf. ante, at 25. Jurors who did not “get into details” of Enron’s com­ plicated accounting schemes, App. 85a, nevertheless knew the outline of the oft-repeated story, including that Skilling and Lay had been cast as the leading villains. Juror 3, for instance, told the court that she “may have heard a little bit” about Enron-related litigation but had not “really pa[id] attention.” at 935a. Yet she was clearly aware of some specifics. On her questionnaire, despite stating that she had not followed Enron-related news, she wrote about “whistleblowers and Arthur Ander­ sen lying about Enron’s accounting,” and she expressed the view that Skilling and Lay “probably knew they were breaking the law.” Supp. App. 105sa–10sa. During questioning, which lasted barely four minutes, the District Court obtained no meaningful information about the actual extent of Juror 3’s familiarity with the case or the basis for her belief in Skilling’s guilt. Yet it nevertheless —————— 21 The majority also notes that about two-thirds of the seated jurors and alternates (11 of 1) had no personal Enron connection. Ante, at 24, and n. 25. This means, of course, that five of the seated jurors and alternates did have connections to friends or colleagues who had lost jobs or money as a result of Enron’s collapse—a fact that does not strike me as particularly reassuring. Cite as: 51 U. S. (10) 35 Opinion of SOTOMAYOR, J. accepted her assurance that she could “absolutely” pre­ sume innocence. App. 93a.22 Indeed, the District Court’s anemic questioning did little to dispel similar doubts about the impartiality of numer­ ous other seated jurors and alternates. In my estimation, more than half of those seated made written and oral comments suggesting active antipathy toward the defen­ dants. The majority thus misses the mark when it asserts that “Skilling’s seated jurors exhibited nothing like the display of bias shown in” Ante, 9. Juror 10, for instance, reported on his written questionnaire that he knew several co-workers who owned Enron stock; that he personally may have owned Enron stock through a mutual fund; that he heard and read about the Enron cases from the “Houston Chronicle, all three Houston news channels, Fox news, talking with friends [and] co-workers, [and] Texas Lawyer Magazine”; that he believed Enron’s col­ lapse “was due to greed and mismanagement”; that “[i]f [Lay] did not know what was going on in his company, he was really a poor manager/leader”; and that the defen­ dants were “suspect.” Supp. App. 11sa–19sa. During questioning, he said he “th[ought]” he could presume innocence and “believe[d]” he could put the Government to its proof, but he also acknowledged that he might have “some hesitancy” “in telling people the government didn’t prove its case.” App. 851a–852a. —————— 22 As one of Skilling’s jury experts observed, there is a “tendency in voir dire of jury pool members in high-profile cases to minimize their exposure to media, their knowledge of prejudicial information, and any biases they may have.” App. 3a; see also at 3a (“Those who perceive themselves or wish to be perceived as good citizens are reluc­ tant to admit they cannot be fair”). For this reason, the fact that “none of the seated jurors and alternates checked the ‘yes’ box” on the written questionnaire when “asked whether they ‘ha[d] an opinion about [Skilling],’ ” ante, is of minimal significance, particularly given that the Causey plea and the impending trial received significant media coverage after the questionnaires were submitted. 3 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. Juror 11 wrote that he “work[ed] with someone who worked at Enron”; that he got Enron-related news from the “Houston Chronicle, Channel 2 News, Channel 13 News, O’Reilly Factor, [and] talking with friends and co­ workers”; that he regularly visited the Chronicle Web site; that “greed on Enron’s part” caused the company’s col­ lapse; and that “a lot of people were hurt financially.” Supp. App. 2sa–30sa. During questioning, he stated that he would have “no problem” requiring the Government to prove its case, but he also told the court that he believed Lay was “greedy” and that corporate executives are often “stretching the legal limits I’m not going to say that they’re all crooks, but, you know.” App. 85a, 854a. Asked whether he would “star[t] the case with sort of an inkling that because [Lay is] greedy he must have done something illegal,” he offered an indeterminate “not neces­ sarily.”23 —————— 23 Many other seated jurors and alternates expressed similarly trou­ bling sentiments. See, Supp. App. 5sa–0sa (Juror ) (obtained Enron-related news from the Chronicle and “local news stations”; blamed Enron’s collapse on “[n]ot enough corporate controls or effective audit procedures to prevent mismanagement of corporate assets”; and was “angry that so many people lost their jobs and their retirement savings”); at 2sa–5sa (Juror 38) (followed Enron-related news from various sources, including the Chronicle; was “angry about what happened”; and “fe[lt] bad for those that worked hard and invested in the corp[oration] only to have it all taken away”); at 11sa–118sa (Juror 4) (had several friends who worked at Enron and lost money; heard about the Enron cases on the news; described the collapse as “sad” because “people lost jobs [and] money—lots of money”; and believed the Government “did the right thing” in its investigation); at 1sa–181sa (Juror 8) (received Enron-related news from the Chronicle, Channel 13 news, the O’Reilly Factor, Internet news sources, and friends, family, and co-workers; attributed Enron’s collapse to “[p]oor management [and] bad judgment—greed”; lamented “[t]he sad state of the long-term loyal employees who are left with nothing in their retirement accounts”; and “admire[d] [the] bravery” of Enron whistle­ blower Sherron Watkins “for bringing the situation to the attention of the public, which stopped things from getting worse”); at 191sa– Cite as: 51 U. S. (10) 3 Opinion of SOTOMAYOR, J. While several seated jurors and alternates did not make specific comments suggesting prejudice, their written and oral responses were so abbreviated as to make it virtually impossible for the District Court reliably to assess whether they harbored any latent biases. Juror 13, for instance, wrote on his questionnaire that he had heard about the Enron cases from the “[n]ews.” Supp. App. 42sa. The court questioned him for two minutes, during which time he confirmed that he had “heard what’s on the news, basically,” including “that the trial had moved from the 1th to the 31st.” He added that the story “was all over the news on every detail of Enron.” App. 858a–80a. No meaningful information about his knowledge or attitudes was obtained. Similarly, Juror 8 wrote that she had not followed Enron-related news but was aware that “[m]any people lost their jobs.” Supp. App. 151sa. The court ques­ tioned her for less than 90 seconds. During that time, she acknowledged that she had “caught glimpses” of the cov­ erage and “kn[e]w generally, you know, that the company went bankrupt” and that there “were some employees that went off and did their own businesses.” App. 99a. Little more was learned.24 —————— 195sa (Juror 90) (heard Enron-related news from his wife, co-workers, and television; wrote that “[i]t’s not right for someone to take” away the money that the “small average worker saves for retirement all his life”; and described the Government’s Enron investigation as “a good thing”); 21sa–225sa (Juror 113) (obtained information about Enron from a “co-worker [who] was in the jury pool for Mrs. Fastow’s trial”; worked for an employer who lost money as a result of Enron’s collapse; found it “sad” that the collapse had affected “such a huge number of people”; and thought “someone had to be doing some­ thing illegal”); 3sa–23sa (Juror 11) (knew a colleague who lost money in Enron’s collapse; obtained Enron-related news from the “Houston Chronicle, Time Magazine, local TV news [and] radio, friends, family, [and] co-workers, [and] internet news sources”; and noted that what stood out was “[t]he employees and retirees that lost their savings”). 24 Several other jurors fell into this category. Juror wrote on his 38 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. In assessing the likelihood that bias lurked in the minds of at least some of these seated jurors, I find telling the way in which voir dire played out. When the District Court asked the prospective jurors as a group whether they had any reservations about their ability to presume innocence and put the Government to its proof, only two answered in the affirmative, and both were excused for cause. at 815a–8a. The District Court’s individual questioning, though truncated, exposed disqualifying prejudices among numerous additional prospective jurors who had earlier expressed no concerns about their impar­ tiality. See n. It thus strikes me as highly likely that at least some of the seated jurors, despite stating that they could be fair, harbored similar biases that a more probing inquiry would likely have exposed. Cf. Yount, 4 U.S., at 10, n. 10 (holding that the trial court’s “particularly extensive” 10-day voir dire assured the jury’s impartiality).25 —————— questionnaire that he had heard about Enron from the Chronicle and “Internet news sources.” at 133sa. He was questioned for 90 seconds, during which time he that he had read an article on the Internet the preceding night “about the jury selection taking place today, stuff like that.” App. 944a. Juror 99 wrote that she had not heard or read about the Enron cases and did not “know anything about” Enron. Supp. App. 210sa. The District Court questioned her for barely one minute. She stated that she had “[n]ot really” learned more about the case, but added that she had heard “this and that” from her par­ ents. App. 995a–99a. The court did not press further. 25 The majority suggests that the fact that Skilling “challenged only one of the seated jurors for cause” indicates that he did not believe the other jurors were biased. Ante, at 31. Our decisions, however, distin­ guish claims involving “the partiality of an individual juror” from antecedent claims directed at “the partiality of the trial jury as a whole.” 103 ; see also Frazier v. United States, 335 U.S. 49, (“[T]he two sorts of challenge[s] are distinct and are therefore to be dealt with separately”). If the jury selection process does not, as here, give a defendant a fair opportunity to identify biased jurors, the defendant can hardly be faulted for failing to make for-cause challenges. Cite as: 51 U. S. (10) 39 Opinion of SOTOMAYOR, J. The majority suggests, ante, at 1–18, 30, that the jury’s decision to acquit Skilling on nine relatively minor insider trading charges confirms its impartiality. This argument, however, mistakes partiality with bad faith or blind vin­ dictiveness. Jurors who act in good faith and sincerely believe in their own fairness may nevertheless harbor disqualifying prejudices. Such jurors may well acquit where evidence is wholly lacking, while subconsciously resolving closer calls against the defendant rather than giving him the benefit of the doubt. Cf. United States v. McVeigh, 918 F. Supp. 14, 142 (WD Okla. 199) (preju­ dice “may go unrecognized in those who are affected by it. The prejudice that may deny a fair trial is not limited to a bias or discriminatory attitude. It includes an impairment of the deliberative process of deductive reasoning from evidentiary facts resulting from an attribution to some­ thing not included in the evidence. That something has its most powerful effect if it generates strong emotional re­ sponses”). In this regard, it is significant that the Gov­ ernment placed relatively little emphasis on the nine insider trading counts during its closing argument, declin­ ing to explain its theory on all but one of the counts in any detail whatsoever. Record 3010. The acquittals on those counts thus provide scant basis for inferring a lack of prejudice. * * * In sum, I cannot accept the majority’s conclusion that voir dire gave the District Court “a sturdy foundation to assess fitness for jury service.” Cf. ante, 9. Taken together, the District Court’s failure to cover certain vital subjects, its superficial coverage of other topics, and its uncritical acceptance of assurances of impartiality leave me doubtful that Skilling’s jury was indeed free from the deep-seated animosity that pervaded the community at large. “[R]egardless of the heinousness of the crime 40 SKILLING v. UNITED STATES Opinion of SOTOMAYOR, J. charged, the apparent guilt of the offender[,] or the station in life which he occupies,” our system of justice demands trials that are fair in both appearance and fact. 3 U.S., at 22. Because I do not believe Skilling’s trial met this standard, I would grant him relief

Justice O'Connor

majority

Kimel v. Florida Bd. of Regents

2000-01-12

https://www.courtlistener.com/opinion/118323/kimel-v-florida-bd-of-regents/

https://www.courtlistener.com/api/rest/v3/clusters/118323/

1999-013

The Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U.S. C. § 621 et seq. (1994 ed. and Supp. III), makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S. C. § 623(a)(1). In these cases, three sets of plaintiffs filed suit under the Act, seeking money damages for their state employers' alleged discrimination on the basis of age. In each case, the state employer moved to dismiss the suit on the basis of its Eleventh Amendment immunity. The District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. Appeals in the three cases were consolidated before the Court of Appeals for the Eleventh Circuit, which held that the ADEA does not validly abrogate the States' Eleventh Amendment immunity. In these cases, we are asked to consider whether the ADEA contains a clear *67 statement of Congress' intent to abrogate the States' Eleventh Amendment immunity and, if so, whether the ADEA is a proper exercise of Congress' constitutional authority. We conclude that the ADEA does contain a clear statement of Congress' intent to abrogate the States' immunity, but that the abrogation exceeded Congress' authority under § 5 of the Fourteenth Amendment. I A The ADEA makes it 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). The Act also provides several exceptions to this broad prohibition. For example, an employer may rely on age where it "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." § 623(f)(1). The Act also permits an employer to engage in conduct otherwise prohibited by § 623(a)(1) if the employer's action "is based on reasonable factors other than age," § 623(f)(1), or if the employer "discharge[s] or otherwise discipline[s] an individual for good cause," § 623(f)(3). Although the Act's prohibitions originally applied only to individuals "at least forty years of age but less than sixtyfive years of age," 81 Stat. 607, 29 U.S. C. § 631 (1964 ed., Supp. III), Congress subsequently removed the upper age limit, and the Act now covers individuals age 40 and over, 29 U.S. C. § 631(a). Any person aggrieved by an employer's violation of the Act "may bring a civil action in any court of competent jurisdiction" for legal or equitable relief. § 626(c)(1). Section 626(b) also permits aggrieved employees to enforce the Act through certain provisions of the Fair Labor Standards Act of 1938 (FLSA), and the ADEA *68 specifically incorporates § 16(b) of the FLSA, 29 U.S. C. § 216(b). Since its enactment, the ADEA's scope of coverage has been expanded by amendment. Of particular importance to these cases is the Act's treatment of state employers and employees. When first passed in 1967, the ADEA applied only to private employers. See 29 U.S. C. § 630(b) (1964 ed., Supp. III) (defining term "employer" to exclude "the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof"). In 1974, in a statute consisting primarily of amendments to the FLSA, Congress extended application of the ADEA's substantive requirements to the States. Fair Labor Standards Amendments of 1974 (1974 Act), § 28, 88 Stat. 74. Congress accomplished that expansion in scope by a simple amendment to the definition of "employer" contained in 29 U.S. C. § 630(b): "The term [employer] also means . . . a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State . . . ." Congress also amended the ADEA's definition of "employee," still defining the term to mean "an individual employed by any employer," but excluding elected officials and appointed policymakers at the state and local levels. § 630(f). In the same 1974 Act, Congress amended 29 U.S. C. § 216(b), the FLSA enforcement provision incorporated by reference into the ADEA. 88 Stat. 61. Section 216(b) now permits an individual to bring a civil action "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." Section 203(x) defines "[p]ublic agency" to include "the government of a State or political subdivision thereof," and "any agency of . . . a State, or a political subdivision of a State." Finally, in the 1974 Act, Congress added a provision prohibiting age discrimination generally in employment at the Federal Government. 88 Stat. 74, 29 U.S. C. § 633a (1994 ed. and Supp. III). Under the current ADEA, *69 mandatory age limits for law enforcement officers and firefighters—at federal, state, and local levels—are exempted from the statute's coverage. 5 U.S. C. §§ 3307(d), (e); 29 U.S. C. § 623(j) (1994 ed., Supp. III). B In December 1994, Roderick MacPherson and Marvin Narz, ages 57 and 58 at the time, filed suit under the ADEA against their employer, the University of Montevallo, in the United States District Court for the Northern District of Alabama. In their complaint, they alleged that the university had discriminated against them on the basis of their age, that it had retaliated against them for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC), and that its College of Business, at which they were associate professors, employed an evaluation system that had a disparate impact on older faculty members. MacPherson and Narz sought declaratory and injunctive relief, backpay, promotions to full professor, and compensatory and punitive damages. App. 21-25. The University of Montevallo moved to dismiss the suit for lack of subject matter jurisdiction, contending it was barred by the Eleventh Amendment. No party disputes the District Court's holding that the university is an instrumentality of the State of Alabama. On September 9, 1996, the District Court granted the university's motion. MacPherson v. University of Montevallo, Civ. Action No. 94—AR-2962—S (ND Ala., Sept. 9, 1996), App. to Pet. for Cert. in No. 98-796, pp. 63a—71a. The court determined that, although the ADEA contains a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity, Congress did not enact or extend the ADEA under its Fourteenth Amendment § 5 enforcement power. Id., at 67a, 69a—70a. The District Court therefore held that the ADEA did not abrogate the States' Eleventh Amendment immunity. Id., at 71a. *70 In April 1995, a group of current and former faculty and librarians of Florida State University, including J. Daniel Kimel, Jr., the named petitioner in one of today's cases, filed suit against the Florida Board of Regents in the United States District Court for the Northern District of Florida. Complaint and Demand for Jury Trial in No. 95—CV-40194, 1 Record, Doc. No. 2. The complaint was subsequently amended to add as plaintiffs current and former faculty and librarians of Florida International University. App. 41. The plaintiffs, all over age 40, alleged that the Florida Board of Regents refused to require the two state universities to allocate funds to provide previously agreed upon market adjustments to the salaries of eligible university employees. The plaintiffs contended that the failure to allocate the funds violated both the ADEA and the Florida Civil Rights Act of 1992, Fla. Stat. § 760.01 et seq. (1997 and Supp. 1998), because it had a disparate impact on the base pay of employees with a longer record of service, most of whom were older employees. App. 42-45. The plaintiffs sought backpay, liquidated damages, and permanent salary adjustments as relief. Id., at 46. The Florida Board of Regents moved to dismiss the suit on the grounds of Eleventh Amendment immunity. On May 17, 1996, the District Court denied the motion, holding that Congress expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that the ADEA is a proper exercise of congressional authority under the Fourteenth Amendment. No. TCA 95-40194—MMP (ND Fla.), App. to Pet. for Cert. in No. 98-796, pp. 57a—62a. In May 1996, Wellington Dickson filed suit against his employer, the Florida Department of Corrections, in the United States District Court for the Northern District of Florida. Dickson alleged that the state employer failed to promote him because of his age and because he had filed grievances with respect to the alleged acts of age discrimination. Dickson sought injunctive relief, backpay, and compensatory *71 and punitive damages. App. 83-109. The Florida Department of Corrections moved to dismiss the suit on the grounds that it was barred by the Eleventh Amendment. The District Court denied that motion on November 5, 1996, holding that Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that Congress had authority to do so under § 5 of the Fourteenth Amendment. Dickson v. Florida Dept. of Corrections, No. 5:96cv207—RH (ND Fla.), App. to Pet. for Cert. in No. 98-796, pp. 72a—76a. The plaintiffs in the MacPherson case, and the state defendants in the Kimel and Dickson cases, appealed to the Court of Appeals for the Eleventh Circuit. The United States also intervened in all three cases to defend the ADEA's abrogation of the States' Eleventh Amendment immunity. The Court of Appeals consolidated the appeals and, in a divided panel opinion, held that the ADEA does not abrogate the States' Eleventh Amendment immunity. 139 F.3d 1426, 1433 (1998). Judge Edmondson, although stating that he believed "good reason exists to doubt that the ADEA was (or could have been properly) enacted pursuant to the Fourteenth Amendment," id., at 1430, rested his opinion on the ADEA's lack of unmistakably clear language evidencing Congress' intent to abrogate the States' sovereign immunity. Ibid. He noted that the ADEA lacks any reference to the Eleventh Amendment or to the States' sovereign immunity and does not contain, in one place, a plain statement that States can be sued by individuals in federal court. Id., at 1430-1431. Judge Cox concurred in Judge Edmondson's ultimate conclusion that the States are immune from ADEA suits brought by individuals in federal court. Id., at 1444. Judge Cox, however, chose not to address "the thorny issue of Congress's intent," id., at 1445, but instead found that Congress lacks the power under § 5 of the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity under the ADEA. Ibid. *72 He concluded that "the ADEA confers rights far more extensive than those the Fourteenth Amendment provides," id., at 1446, and that "Congress did not enact the ADEA as a proportional response to any widespread violation of the elderly's constitutional rights." Id., at 1447. Chief Judge Hatchett dissented from both grounds. Id., at 1434. We granted certiorari, 525 U.S. 1121 (1999), to resolve a conflict among the Federal Courts of Appeals on the question whether the ADEA validly abrogates the States' Eleventh Amendment immunity. Compare Cooper v. New York State Office of Mental Health, 162 F.3d 770 (CA2 1998) (holding that the ADEA does validly abrogate the States' Eleventh Amendment immunity), cert. pending, No. 98-1524; Migneault v. Peck, 158 F.3d 1131 (CA10 1998) (same), cert. pending, No. 98-1178; Coger v. Board of Regents of State of Tenn., 154 F.3d 296 (CA6 1998) (same), cert. pending, No. 98-821; Keeton v. University of Nev. System, 150 F.3d 1055 (CA9 1998) (same); Scott v. University of Miss., 148 F.3d 493 (CA5 1998) (same); and Goshtasby v. Board of Trustees of Univ. of Ill., 141 F.3d 761 (CA7 1998) (same), with Humenansky v. Regents of Univ. of Minn., 152 F.3d 822 (CA8 1998) (holding that the ADEA does not validly abrogate the States' Eleventh Amendment immunity), cert. pending, No. 98-1235; and 139 F.3d 1426 (CA11 1998) (case below). II The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although today's cases concern suits brought by citizens against their own States, this Court has long "`understood the Eleventh Amendment to stand not so much for what it *73 says, but for the presupposition . . . which it confirms.' " Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991)). Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666, 669-670 (1999); Seminole Tribe, supra, at 54; see Hans v. Louisiana, 134 U.S. 1, 15 (1890). Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Seminole Tribe, supra, at 55. III To determine whether a federal statute properly subjects States to suits by individuals, we apply a "simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985)). We agree with petitioners that the ADEA satisfies that test. The ADEA states that its provisions "shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U.S. C. § 626(b). Section 216(b), in turn, clearly provides for suits by individuals against States. That provision authorizes employees to maintain actions for backpay "against any employer (including a public agency) *74 in any Federal or State court of competent jurisdiction . . . ." Any doubt concerning the identity of the "public agency" defendant named in § 216(b) is dispelled by looking to § 203(x), which defines the term to include "the government of a State or political subdivision thereof," and "any agency of ... a State, or a political subdivision of a State." Read as a whole, the plain language of these provisions clearly demonstrates Congress' intent to subject the States to suit for money damages at the hands of individual employees. Respondents maintain that these statutory sections are less than "unmistakably clear" for two reasons. Brief for Respondents 15. First, they note that the ADEA already contains its own enforcement provision, § 626(c)(1),which provides in relevant part that "[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." Respondents claim that the existence of § 626(c)(1) renders Congress' intent to incorporate the clear statement of abrogation in § 216(b), the FLSA's enforcement provision, ambiguous. The text of the ADEA forecloses respondents' argument. Section 626(b) clearly states that the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in [section 216(b)] and subsection (c)of this section." § 626(b) (emphasis added). In accord with that statutory language, we have explained repeatedly that § 626(b)incorporates the FLSA's enforcement provisions, and that those remedial options operate together with § 626(c)(1). See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 357 (1995) ("[The ADEA's] remedial provisions incorporate by reference the provisions of the Fair Labor Standards Act of 1938"); Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989) ("[T]he ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA" (citation omitted)); Lorillard v. Pons, 434 U. S. *75 575, 582 (1978) ("[B]ut for those changes Congress expressly made [in the ADEA], it intended to incorporate fully the remedies and procedures of the FLSA"). Respondents' argument attempts to create ambiguity where, according to the statute's text and this Court's repeated interpretations thereof, there is none. Respondents next point to the phrase "court of competent jurisdiction" in § 216(b), and contend that it makes Congress' intent to abrogate less than clear. Relying on our decision in the distinct context of a state waiver of sovereign immunity, Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946), respondents maintain that perhaps Congress simply intended to permit an ADEA suit against a State only in those cases where the State previously has waived its Eleventh Amendment immunity to suit. We disagree. Our decision in Kennecott Copper must be read in context. The petitioner there contended that Utah had waived its Eleventh Amendment immunity to suit in federal court through a state statute that authorized taxpayers to pay their taxes under protest and "`thereafter bring an action in any court of competent jurisdiction for the return thereof . . . .' " Id., at 575, n. 1 (quoting Utah Code Ann. § 80-5—76 (1943)). Although the statute undoubtedly provided for suit against the State of Utah in its own courts, we held that the statute fell short of the required "clear declaration by a State of its consent to be sued in the federal courts." 327 U.S., at 579-580 (emphasis added). Section 216(b) contains no such ambiguity. The statute authorizes employee suits against States "in any Federal or State court of competent jurisdiction." § 216(b) (emphasis added). That language eliminates the ambiguity identified in Kennecott Copper —whether Utah intended to permit suits against the sovereign in state court only, or in state and federal court. Under § 216(b), the answer to that question is clear—actions may be maintained in federal and state court. That choice of language sufficiently indicates Congress' intent, *76 in the ADEA, to abrogate the States' Eleventh Amendment immunity to suits by individuals. Although Justice Thomas concedes in his opinion that our cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time, post, at 104-105 (opinion concurring in part and dissenting in part), he concludes that the ADEA lacks the requisite clarity because of the "sequence of events" surrounding the enactment and amendment of §§ 216(b) and 626(b), post, at 102. Justice Thomas states that he is unwilling to assume that when Congress amended § 216(b) in 1974, it recognized the consequences that amendment would have for the ADEA. Ibid. We respectfully disagree. The fact that Congress amended the ADEA itself in the same 1974 Act makes it more than clear that Congress understood the consequences of its actions. Indeed, Congress amended § 216(b) to provide for suits against States in precisely the same Act in which it extended the ADEA's substantive requirements to the States. See 1974 Act, § 6(d)(1), 88 Stat. 61 (amending § 216(b)); § 28(a), 88 Stat. 74 (extending ADEA to the States). Those provisions confirm for us that the effect on the ADEA of the § 216(b) amendment was not mere happenstance. In any event, we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation (e. g., amending incorporated provisions as opposed to enacting a statute for the first time). The clear statement inquiry focuses on what Congress did enact, not when it did so. We will not infer ambiguity from the sequence in which a clear textual statement is added to a statute. We also disagree with Justice Thomas' remaining points, see post, at 105-109. Although the ADEA does contain its own enforcement provision in § 626(c)(1), the text of § 626(b) acknowledges § 626(c)(1)'s existence and makes clear that the ADEA also incorporates § 216(b), save as indicated *77 otherwise in § 626(b)'s proviso. See § 626(b) ("The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sectio[n] . . . 216 (except for subsection (a) thereof) . . . and subsection (c) of this section " (emphasis added)). We fail to see how the interpretation suggested by Justice Thomas, under which § 626(b) would carry over only those § 216(b) "embellishments" not already provided for in § 626(c)(1) except for the authorization of suits against States, see post, at 106, could be a permissible one. To accept that interpretation, for example, one would have to conclude that Congress intended to incorporate only the portion of § 216(b)'s third sentence that provides for collective actions, but not the part of the very same sentence that authorizes suits against States. See § 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated"). Justice Thomas also concludes that § 216(b) itself fails the clear statement test. Post, at 108-109. As we have already explained, the presence of the word "competent" in § 216(b) does not render that provision less than "unmistakably clear." See supra, at 75-76. Justice Thomas' reliance on a single phrase from our decision in Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279 (1973), see post, at 108, as support for the contrary proposition is puzzling, given his separate argument with respect to § 6(d)(2)(A) of the 1974 Act. Crucial to Justice Thomas' argument on that front is his acknowledgment that Congress did intend in the 1974 amendments to permit "FLSA plaintiffs who had been frustrated by state defendants' invocation of Eleventh Amendment immunity under Employees to avail themselves of the newly amended § 216(b)." Post, at 103; *78 see also post, at 108-109. We agree with the implication of that statement: In response to Employees, Congress clearly intended through "the newly amended § 216(b)" to abrogate the States' sovereign immunity. In light of our conclusion that Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity, we now must determine whether Congress effectuated that abrogation pursuant to a valid exercise of constitutional authority. IV A This is not the first time we have considered the constitutional validity of the 1974 extension of the ADEA to state and local governments. In EEOC v. Wyoming, 460 U.S. 226, 243 (1983), we held that the ADEA constitutes a valid exercise of Congress' power "[t]o regulate Commerce . . . among the several States," Art. I, § 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment. Because we found the ADEA valid under Congress' Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress' power under § 5 of the Fourteenth Amendment. 460 U.S., at 243. But see id., at 259-263 (Burger, C. J., dissenting). Resolution of today's cases requires us to decide that question. In Seminole Tribe, we held that Congress lacks power under Article I to abrogate the States' sovereign immunity. 517 U.S., at 72-73. "Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." Id., at 72. Last Term, in a series of three decisions, we reaffirmed that central holding of Seminole Tribe. See College Savings Bank, 527 U. S., at 672; Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, *79 527 U.S. 627, 636 (1999); Alden v. Maine, 527 U.S. 706, 712 (1999). Indeed, in College Savings Bank, we rested our decision to overrule the constructive waiver rule of Parden v. Terminal R. Co. of Ala. Docks Dept., 377 U.S. 184 (1964), in part, on our Seminole Tribe holding. See College Savings Bank, supra, at 683 ("Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe "). Under our firmly established precedent then, if the ADEA rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers. Justice Stevens disputes that well-established precedent again. Compare post, p. 92 (opinion dissenting in part and concurring in part), with Alden, supra, p. 760 (Souter, J., dissenting); College Savings Bank, 527 U. S., at 692, n. 2 (Stevens, J., dissenting); id., at 699-705 (Breyer, J., dissenting); Florida Prepaid, supra, at 664-665 (Stevens, J., dissenting); Seminole Tribe, 517 U. S., at 76-100 (Stevens, J., dissenting); id., at 100-185 (Souter, J., dissenting). In Alden, we explained that, "[a]lthough the sovereign immunity of the States derives at least in part from the commonlaw tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design." 527 U.S., at 733. For purposes of today's decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. See id., at 712-754; College Savings Bank, supra, at 669-670, 687-691; Seminole Tribe, supra, at 54-55, 59-73; Pennsylvania v. Union Gas Co., 491 U.S. 1, 30-42 (1989) (Scalia, J., concurring in part and dissenting in part). Indeed, the present dissenters' refusal to accept the validity and natural import of decisions like Hans, rendered over a full century ago by this Court, makes it difficult *80 to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. Compare Hans, 134 U. S., at 10, 14-16, with post, at 97 (Stevens, J., dissenting in part and concurring in part). Today we adhere to our holding in Seminole Tribe: Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals. Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States' sovereign immunity. In Fitzpatrick v. Bitzer, 427 U.S. 445 (1976), we recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment." Id., at 456 (citation omitted). Since our decision in Fitzpatrick, we have reaffirmed the validity of that congressional power on numerous occasions. See, e. g., College Savings Bank, supra, at 670; Florida Prepaid, supra, at 636-637; Alden, supra, at 756; Seminole Tribe, supra, at 59. Accordingly, the private petitioners in these cases may maintain their ADEA suits against the States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under § 5. B The Fourteenth Amendment provides, in relevant part: "Section 1. . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." . . . . . "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." As we recognized most recently in City of Boerne v. Flores, 521 U.S. 507, 517 (1997), § 5 is an affirmative grant of power to Congress. "It is for Congress in the first instance to *81 `determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." Id., at 536 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)). Congress' § 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress' power "to enforce" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. 521 U.S., at 518. Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot "decree the substance of the Fourteenth Amendment's restrictions on the States. . . . It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation." Id., at 519 (emphases added). The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch. Id., at 536. In City of Boerne, we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. Id., at 519-520. The line between the two is a fine one. Accordingly, recognizing that "Congress must have wide latitude in determining where [that line] lies," we held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id., at 520. In City of Boerne, we applied that "congruence and proportionality" test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate legislation under § 5. We first noted that the legislative record contained very little evidence of the unconstitutional conduct *82 purportedly targeted by RFRA's substantive provisions. Rather, Congress had uncovered only "anecdotal evidence" that, standing alone, did not reveal a "widespread pattern of religious discrimination in this country." Id., at 531. Second, we found that RFRA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Id., at 532. Last Term, we again had occasion to apply the "congruence and proportionality" test. In Florida Prepaid, we considered the validity of the Eleventh Amendment abrogation provision in the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). We held that the statute, which subjected States to patent infringement suits, was not appropriate legislation under § 5 of the Fourteenth Amendment. The Patent Remedy Act failed to meet our congruence and proportionality test first because "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." 527 U.S., at 640 (emphasis added). Moreover, because it was unlikely that many of the acts of patent infringement affected by the statute had any likelihood of being unconstitutional, we concluded that the scope of the Act was out of proportion to its supposed remedial or preventive objectives. Id., at 647. Instead, "[t]he statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime." Id., at 647-648. While we acknowledged that such aims may be proper congressional concerns under Article I, we found them insufficient to support an abrogation of the States' Eleventh Amendment immunity after Seminole Tribe. Florida Prepaid, supra, at 648. C Applying the same "congruence and proportionality" test in these cases, we conclude that the ADEA is not "appropriate *83 legislation" under § 5 of the Fourteenth Amendment. Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act. We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See Gregory v. Ashcroft, 501 U.S. 452 (1991); Vance v. Bradley, 440 U.S. 93 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976) (per curiam). In all three cases, we held that the age classifications at issue did not violate the Equal Protection Clause. See Gregory, supra, at 473; Bradley, supra, at 102-103, n. 20, 108-112; Murgia, supra, at 317. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985). Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a "`history of purposeful unequal treatment.' " Murgia, supra, at 313 (quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. 427 U.S., at 313-314. Accordingly, as we recognized in Murgia, Bradley, and Gregory, age is not a suspect classification under the Equal Protection Clause. See, e. g., Gregory, supra, at 470; Bradley, supra, at 97; Murgia, supra, at 313-314. States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razorlike precision. As *84 we have explained, when conducting rational basis review "we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational." Bradley, supra, at 97. In contrast, when a State discriminates on the basis of race or gender, we require a tighter fit between the discriminatory means and the legitimate ends they serve. See, e. g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) ("[Racial] classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests"); Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (holding that gender classifications are constitutional only if they serve "`important governmental objectives and . . . the discriminatory means employed' are `substantially related to the achievement of those objectives' " (citation omitted)). Under the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. The Constitution does not preclude reliance on such generalizations. That age proves to be an inaccurate proxy in any individual case is irrelevant. "[W]here rationality is the test, a State `does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.' " Murgia, supra, at 316 (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). Finally, because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the "facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Bradley, supra, at 111; see Gregory, supra, at 473. Our decisions in Murgia, Bradley, and Gregory illustrate these principles. In all three cases, we held that the States' reliance on broad generalizations with respect to age did *85 not violate the Equal Protection Clause. In Murgia, we upheld against an equal protection challenge a Massachusetts statute requiring state police officers to retire at age 50. The State justified the provision on the ground that the age classification assured the State of the physical preparedness of its officers. 427 U.S., at 314-315. Although we acknowledged that Officer Murgia himself was in excellent physical health and could still perform the duties of a state police officer, we found that the statute clearly met the requirements of the Equal Protection Clause. Id., at 311, 314-317. "That the State chooses not to determine fitness more precisely through individualized testing after age 50 [does not prove] that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation." Id., at 316. In Bradley, we considered an equal protection challenge to a federal statute requiring Foreign Service officers to retire at age 60. We explained: "If increasing age brings with it increasing susceptibility to physical difficulties, . . . the fact that individual Foreign Service employees may be able to perform past age 60 does not invalidate [the statute] any more than did the similar truth undercut compulsory retirement at age 50 for uniformed state police in Murgia. " 440 U.S., at 108. Finally, in Gregory, we upheld a provision of the Missouri Constitution that required judges to retire at age 70. Noting that the Missouri provision was based on a generalization about the effect of old age on the ability of individuals to serve as judges, we acknowledged that "[i]t is far from true that all judges suffer significant deterioration in performance at age 70," "[i]t is probably not true that most do," and "[i]t may not be true at all." 501 U.S., at 473. Nevertheless, because Missouri's age classification was subject only to rational basis review, we held that the State's reliance on such imperfect generalizations was entirely proper under the Equal Protection Clause. Ibid. These decisions thus demonstrate that the constitutionality of state classifications on the basis of age cannot be determined *86 on a person-by-person basis. Our Constitution permits States to draw lines on the basis of age when they have a rational basis for doing so at a class-based level, even if it "is probably not true" that those reasons are valid in the majority of cases. Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of Boerne, 521 U. S., at 532. The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. The ADEA makes unlawful, in the employment context, all "discriminat[ion] against any individual . . . because of such individual's age." 29 U.S. C. § 623(a)(1). Petitioners, relying on the Act's exceptions, dispute the extent to which the ADEA erects protections beyond the Constitution's requirements. They contend that the Act's prohibition, considered together with its exceptions, applies only to arbitrary age discrimination, which in the majority of cases corresponds to conduct that violates the Equal Protection Clause. We disagree. Petitioners stake their claim on § 623(f)(1). That section permits employers to rely on age when it "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." Petitioners' reliance on the "bona fide occupational qualification" (BFOQ) defense is misplaced. Our interpretation of § 623(f)(1) in Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985), conclusively demonstrates that the defense is a far cry from the rational basis standard we apply to age discrimination under the Equal Protection Clause. The petitioner in that case maintained that, pursuant to the BFOQ defense, employers must be permitted to rely on age when such reliance *87 has a "rational basis in fact." Id., at 417. We rejected that argument, explaining that "[t]he BFOQ standard adopted in the statute is one of `reasonable necessity,' not reasonableness," id., at 419, and that the ADEA standard and the rational basis test are "significantly different," id., at 421. Under the ADEA, even with its BFOQ defense, the State's use of age is prima facie unlawful. See 29 U.S. C. § 623(a)(1); Western Air Lines, 472 U. S., at 422 ("Under the Act, employers are to evaluate employees . . . on their merits and not their age"). Application of the Act therefore starts with a presumption in favor of requiring the employer to make an individualized determination. See ibid. In Western Air Lines, we concluded that the BFOQ defense, which shifts the focus from the merits of the individual employee to the necessity for the age classification as a whole, is "`meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." Id., at 412 (citation omitted). We based that conclusion on both the restrictive language of the statutory BFOQ provision itself and the EEOC's regulation interpreting that exception. See 29 CFR § 1625.6(a) (1998) ("It is anticipated that this concept of a [BFOQ] will have limited scope and application. Further, as this is an exception to the Act it must be narrowly construed"). To succeed under the BFOQ defense, we held that an employer must demonstrate either "a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position," or that reliance on the age classification is necessary because "it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job." 472 U.S., at 422— 423 (emphases added). Measured against the rational basis standard of our equal protection jurisprudence, the ADEA plainly imposes substantially higher burdens on state employers. Thus, although it is true that the existence of the BFOQ defense makes the ADEA's prohibition of age discrimination *88 less than absolute, the Act's substantive requirements nevertheless remain at a level akin to our heightened scrutiny cases under the Equal Protection Clause. Petitioners also place some reliance on the next clause in § 623(f)(1), which permits employers to engage in conduct otherwise prohibited by the Act "where the differentiation is based on reasonable factors other than age." This exception confirms, however, rather than disproves, the conclusion that the ADEA's protection extends beyond the requirements of the Equal Protection Clause. The exception simply makes clear that "[t]he employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly." Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993). Under the Constitution, in contrast, States may rely on age as a proxy for other characteristics. See Gregory, 501 U. S., at 473 (generalization about ability to serve as judges at age 70); Bradley, 440 U. S., at 108-109, 112 (generalization about ability to serve as Foreign Service officer at age 60); Murgia, 427 U. S., at 314-317 (generalization about ability to serve as state police officer at age 50). Section 623(f)(1), then, merely confirms that Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny. That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our § 5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that § 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress' action. See, e. g., Flor- *89 ida Prepaid, 527 U. S., at 640-647; City of Boerne, 521 U. S., at 530-531. "The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Id., at 530 (citing South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)). Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. The evidence compiled by petitioners to demonstrate such attention by Congress to age discrimination by the States falls well short of the mark. That evidence consists almost entirely of isolated sentences clipped from floor debates and legislative reports. See, e. g., S. Rep. No. 93-846, p. 112 (1974); S. Rep. No. 93-690, p. 56 (1974); H. R. Rep. No. 93— 913, pp. 40-41 (1974); S. Rep. No. 93-300, p. 57 (1973); Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 (Comm. Print 1973); 113 Cong. Rec. 34742 (1967) (remarks of Rep. Steiger); id., at 34749 (remarks of Rep. Donohue); 110 Cong. Rec. 13490 (1964) (remarks of Sen. Smathers); id., at 9912 (remarks of Sen. Sparkman); id., at 2596 (remarks of Rep. Beckworth). The statements of Senator Bentsen on the floor of the Senate are indicative of the strength of the evidence relied on by petitioners. See, e. g., 118 Cong. Rec. 24397 (1972) (stating that "there is ample evidence that age discrimination is broadly practiced in government employment," but relying on newspaper articles about federal employees); id., at 7745 ("Letters from my own State have revealed that State and local governments have also been guilty of discrimination toward older employees"); ibid. ("[T]here are strong indications that the hiring and firing practices of governmental units discriminate against the elderly . . ."). *90 Petitioners place additional reliance on Congress' consideration of a 1966 report prepared by the State of California on age discrimination in its public agencies. See Hearings on H. R. 3651 et al. before the Subcommittee on Labor of the House of Representatives Committee on Education and Labor, 90th Cong., 1st Sess., pp. 161-201 (1967) (Hearings) (reprinting State of California, Citizens' Advisory Committee on Aging, Age Discrimination in Public Agencies (1966)). Like the assorted sentences petitioners cobble together from a decade's worth of congressional reports and floor debates, the California study does not indicate that the State had engaged in any unconstitutional age discrimination. In fact, the report stated that the majority of the age limits uncovered in the state survey applied in the law enforcement and firefighting occupations. Hearings 168. Those age limits were not only permitted under California law at the time, see ibid., but are also currently permitted under the ADEA. See 5 U.S. C. §§ 3307(d), (e); 29 U.S. C. § 623(j) (1994 ed., Supp. III). Even if the California report had uncovered a pattern of unconstitutional age discrimination in the State's public agencies at the time, it nevertheless would have been insufficient to support Congress' 1974 extension of the ADEA to every State of the Union. The report simply does not constitute "evidence that [unconstitutional age discrimination] had become a problem of national import." Florida Prepaid, supra, at 641. Finally, the United States' argument that Congress found substantial age discrimination in the private sector, see Brief for United States 38, is beside the point. Congress made no such findings with respect to the States. Although we also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination *91 by the States. See Florida Prepaid, 527 U. S., at 640. A review of the ADEA's legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the § 5 inquiry, id., at 646; City of Boerne, supra, at 531-532, Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Act's substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress' power under § 5 of the Fourteenth Amendment. The ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid. D Our decision today does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private individuals. State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union.[*] Those avenues *92 of relief remain available today, just as they were before this decision. Because the ADEA does not validly abrogate the States' sovereign immunity, however, the present suits must be dismissed. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting in part and concurring in part. Congress' power to regulate the American economy includes the power to regulate both the public and the private *93 sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress' power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 165-168 (1996) (Souter, J., dissenting); EEOC v. Wyoming, 460 U.S. 226, 247-248 (1983) (Stevens, J., concurring). The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States' "dignity and respect" from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement. See generally Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543 (1954). It is the Framers' compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. The composition of the Senate was originally determined by the legislatures of the States, which would guarantee that their interests could not be ignored by Congress.[1]*94 The Framers also directed that the House be composed of Representatives selected by voters in the several States, the consequence of which is that "the states are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, the separate geographical determinants of national as well as local politics." Id., at 546. Whenever Congress passes a statute, it does so against the background of state law already in place; the propriety of taking national action is thus measured by the metric of the existing state norms that Congress seeks to supplement or supplant.[2] The persuasiveness of any justification for overcoming legislative inertia and taking national action, either creating new federal obligations or providing for their enforcement, must necessarily be judged in reference to state interests, as expressed in existing state laws. The precise scope of federal laws, of course, can be shaped with nuanced attention to state interests. The Congress also has the authority to grant or withhold jurisdiction in lower federal courts. The burden of being haled into a federal forum for the enforcement of federal law, thus, can be expanded or contracted as Congress deems proper, which decision, like all other legislative acts, necessarily contemplates state interests. Thus, Congress can use its broad range of flexible legislative tools to approach the delicate issue of how to balance local and national interests in the *95 most responsive and careful manner.[3] It is quite evident, therefore, that the Framers did not view this Court as the ultimate guardian of the States' interest in protecting their own sovereignty from impairment by "burdensome" federal laws.[4] *96 Federalism concerns do make it appropriate for Congress to speak clearly when it regulates state action. But when it does so, as it has in these cases,[5] we can safely presume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. In my judgment, the question whether those enforcement proceedings should be conducted exclusively by federal agencies, or may be brought by private parties as well, is a matter of policy for Congress to decide. In either event, once Congress has made its policy choice, the sovereignty concerns of the several States are satisfied, and the federal interest in evenhanded enforcement of federal law, explicitly endorsed in Article VI of the Constitution, does not countenance further limitations. There is not a word in the text of the Constitution supporting the Court's conclusion that the judgemade doctrine of sovereign immunity limits Congress' power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President. *97 The Eleventh Amendment simply does not support the Court's view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 286-289 (1985) (Brennan, J., dissenting). Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be "abrogated" by an Act of Congress. Seminole Tribe, 517 U. S., at 93 (Stevens, J., dissenting). Here, however, private petitioners did not invoke the federal courts' diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today's decision (relying as it does on Seminole Tribe ) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity,[6] which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to "abrogate" the Court's "Eleventh Amendment" version of the common-law defense of sovereign immunity to do so. That is the essence of the Court's holding in Pennsylvania v. Union Gas Co., 491 U.S. 1, 13-23 (1989). I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so *98 fundamentally inconsistent with the Framers' conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. See, e. g., Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-410 (1932) (Brandeis, J., dissenting). And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis ` protection of reliance interests. It cannot be credibly maintained that a State's ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole Tribe, as that decision leaves open a State's liability upon enforcement of federal law by federal agencies. Nor can a State find solace in the stare decisis interest of promoting "the evenhanded . . . and consistent development of legal principles." Payne v. Tennessee, 501 U.S. 808, 827 (1991). That principle is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court's decision today and in the equally misguided opinion of Alden v. Maine, 527 U.S. 706 (1999). Further still, the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress' § 5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law.[7] The kind of judicial activism manifested in cases like Seminole Tribe, *99 Alden v. Maine, Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627 (1999), and College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999), represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises. Accordingly, I respectfully dissent. Justice Thomas, with whom Justice Kennedy joins, concurring in part and dissenting in part. In Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), this Court, cognizant of the impact of an abrogation of the States' Eleventh Amendment immunity from suit in federal court on "the usual constitutional balance between the States and the Federal Government," reaffirmed that "Congress may abrogate . . . only by making its intention unmistakably clear in the language of the statute." Id., at 242. This rule "`assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision.' " Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)). And it is especially applicable when this Court deals with a statute like the Age Discrimination in Employment Act of 1967 (ADEA), whose substantive mandates extend to "elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy." Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 285 (1973). Because I think that Congress has not made its intention to abrogate "unmistakably clear" in the text of the ADEA, I respectfully dissent from Part III of the Court's opinion.[1] *100 I It is natural to begin the clear statement inquiry by examining those provisions that reside within the four corners of the Act in question. Private petitioners and the government correctly observe that the ADEA's substantive provisions extend to the States as employers, see 29 U.S. C. § 623(a) (providing that "[i]t shall be unlawful for an employer" to engage in certain age discriminatory practices); § 630(b) (defining "employer" to include "a State or a political subdivision of a State"); § 630(f) (defining "employee" as "an individual employed by any employer"), and that the ADEA establishes an individual right-of-action provision for "aggrieved" persons, see § 626(c)(1) ("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter"). Since, in the case of a state employee, the only possible defendant is the State, it is submitted that Congress clearly expressed its intent that a state employee may qualify as a "person aggrieved" under § 626(c)(1) and bring suit against his state employer in federal court. While the argument may have some logical appeal, it is squarely foreclosed by precedent—which explains the Court's decision to employ different reasoning in finding a clear statement, see ante, at 73. In Employees, we confronted the pre-1974 version of the Fair Labor Standards Act of 1938 (FLSA), which clearly extended as a substantive matter to state employers, and included the following private right-of-action provision: "`Action to recover such liability may be maintained in any court of competent jurisdiction.' " Employees, supra, at 283 (quoting 29 U.S. C. § 216(b) (1970 ed.)). We held that this language fell short of a clear statement of Congress' intent to abrogate. The FLSA's substantive coverage of state employers could be given meaning through enforcement by the Secretary of Labor, which would raise no Eleventh Amendment issue, 411 U.S., at 285-286, and we were "reluctant to believe that Congress in pursuit *101 of a harmonious federalism desired to treat the States so harshly" by abrogating their Eleventh Amendment immunity, id., at 286. See also, e. g., Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (holding that Congress had not clearly stated its intent to abrogate in a statute that authorized "parties aggrieved . . . to `bring a civil action . . . in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy' ") (quoting 20 U.S. C. § 1415(e)(2) (1982 ed.)). The ADEA is no different from the version of the FLSA we examined in Employees. It unquestionably extends as a substantive matter to state employers, but does not mention States in its right-of-action provision: "Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." 29 U.S. C. § 626(c)(1). This provision simply does not reveal Congress' attention to the augmented liability and diminished sovereignty concomitant to an abrogation of Eleventh Amendment immunity. "Congress, acting responsibly, would not be presumed to take such action silently." Employees, supra, at 284-285. II Perhaps recognizing the obstacle posed by Employees, private petitioners and the Government contend that the ADEA incorporates a clear statement from the FLSA. The ADEA's incorporating reference, which has remained constant since the enactment of the ADEA in 1967, provides: "The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U.S. C. § 626(b). It is argued that § 216(b)—one of the incorporated provisions from the FLSA—unequivocally abrogates the States' immunity from suit in federal court. That section states in relevant part that "[a]n action *102 to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U.S. C. § 216(b). But, as noted in the above discussion of Employees, § 216(b) was not always so worded. At the time the ADEA was enacted in 1967, a relatively sparse version of § 216(b)— which Employees held insufficient to abrogate the States' immunity—provided that an "[a]ction to recover such liability may be maintained in any court of competent jurisdiction." 29 U.S. C. § 216(b) (1964 ed.). It was not until 1974 that Congress modified § 216(b) to its current formulation. Fair Labor Standards Amendments of 1974 (1974 Amendments), § 6(d)(1), 88 Stat. 61. This sequence of events suggests, in my view, that we should approach with circumspection any theory of "clear statement by incorporation." Where Congress amends an Act whose provisions are incorporated by other Acts, the bill under consideration does not necessarily mention the incorporating references in those other Acts, and so fails to inspire confidence that Congress has deliberated on the consequences of the amendment for the other Acts. That is the case here. The legislation that amended § 216(b), § 6(d)(1) of the 1974 Amendments, did not even acknowledge § 626(b). And, given the purpose of the clear statement rule to "`assur[e] that the legislature has in fact faced' " the issue of abrogation, Will, 491 U. S., at 65 (quoting Bass, 404 U. S., at 349), I am unwilling to indulge the fiction that Congress, when it amended § 216(b), recognized the consequences for a separate Act (the ADEA) that incorporates the amended provision. To be sure, § 28 of the 1974 Amendments, 88 Stat. 74, did modify certain provisions of the ADEA, which might suggest that Congress understood the impact of § 6(d)(1) on the ADEA. See ante, at 76. But § 6(d)(2)(A), another of the 1974 Amendments, suggests just the opposite. Section *103 6(d)(2)(A) added to the statute of limitations provision of the FLSA, 29 U.S. C. § 255, a new subsection (d), which suspended the running of the statutory periods of limitation on "any cause of action brought under section 16(b) of the [FLSA, 29 U.S. C. § 216(b)] . . . on or before April 18, 1973," the date Employees was decided, until "one hundred and eighty days after the effective date of [the 1974 Amendments]." The purpose of this new subsection—revealed not only by its reference to the date Employees was decided, but also by its exception for actions in which "judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction"—was to allow FLSA plaintiffs who had been frustrated by state defendants' invocation of Eleventh Amendment immunity under Employees to avail themselves of the newly amended § 216(b).[2] It appears, however, that Congress was oblivious to the impact of § 6(d)(2)(A) on the ADEA. The new § 255(d), by operation of § 7(e) of the ADEA, 29 U.S. C. § 626(e) (1988 ed.) ("Sectio[n] 255 . . . of this title shall apply to actions under this chapter"),[3] automatically became part of the ADEA in 1974. And yet the new § 255(d) could have no possible application to the ADEA because, as the Court observes, ante, at 76 (citing § 28(a) of the 1974 Amendments), the ADEA's substantive mandates did not even apply to the States until the 1974 Amendments. Thus, before 1974, *104 there were no ADEA suits against States that could be affected by § 255(d)'s tolling provision. If Congress had recognized this "over inclusiveness" problem, it likely would have amended § 626(e) to incorporate only §§ 255(a)—(c). Cf. § 626(b) (incorporating "the powers, remedies, and procedures provided in sectio[n] . . . 216 (except for subsection (a) thereof ") (emphasis added)). But since Congress did not do so, we are left to conclude that Congress did not clearly focus on the impact of § 6(d)(2)(A) on the ADEA. And Congress' insouciance with respect to the impact of § 6(d)(2)(A) suggests that Congress was similarly inattentive to the impact of § 6(d)(1). Insofar as § 6(d)(2)(A) is closer to § 6(d)(1) in terms of space and purpose than is § 28, the implication I would draw from § 6(d)(2)(A) almost certainly outweighs the inference the Court would draw from § 28. In any event, the notion that § 28 of the 1974 Amendments evidences Congress' awareness of every last ripple those amendments might cause in the ADEA is at best a permissible inference, not "the unequivocal declaration which . . . is necessary before we will determine that Congress intended to exercise its powers of abrogation." Dellmuth, 491 U. S., at 232. The Court advances a more general critique of my approach, explaining that "we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation . . . ." Ante, at 76. But that descriptive observation, with which I agree, is hardly probative in light of the fact that a "clear statement by incorporation" argument has not to date been presented to this Court. I acknowledge that our previous cases have not required a clear statement to appear within a single section or subsection of an Act. Pennsylvania v. Union Gas Co., 491 U.S. 1, 7-10 (1989), overruled on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); see also id., at 56-57 (confirming clear statement in one statutory subsection by looking to provisions in other *105 subsection). Nor have our cases required that such separate sections or subsections of an Act be passed at the same time. Union Gas, supra, at 7-13, and n. 2 (consulting original provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and 1986 amendments to that Act). But, even accepting Union Gas to be correctly decided, I do not think the situation where Congress amends an incorporated provision is analogous to Union Gas. In the Union Gas setting, where the later Congress actually amends the earlier enacted Act, it is reasonable to assume that the later Congress focused on each of the various provisions, whether new or old, that combine to express an intent to abrogate. III Even if a clarifying amendment to an incorporated provision might sometimes provide a clear statement to abrogate for purposes of the Act into which the provision is incorporated, this is not such a case for two reasons. First, § 626(b) does not clearly incorporate the part of § 216(b) that establishes a private right of action against employers. Second, even assuming § 626(b) incorporates § 216(b) in its entirety, § 216(b) itself falls short of an "unmistakably clear" expression of Congress' intent to abrogate the States' Eleventh Amendment immunity from suit in federal court. A I do not dispute that § 626(b) incorporates into the ADEA some provisions of § 216(b). But it seems to me at least open to debate whether § 626(b) incorporates the portion of § 216(b) that creates an individual private right of action, for the ADEA already contains its own private right-of-action provision—§ 626(c)(1). See McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 358 (1995) ("The ADEA .. . contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a *106 right of action to obtain the authorized relief. 29 U.S. C. § 626(c)"); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 573-574 (3d ed. 1996) ("The ADEA grants any aggrieved person the right to sue for legal or equitable relief that will effectuate the purposes of the Act" (citing § 626(c)(1)) (footnote omitted)). While the right-of-action provisions in §§ 626(c) and 216(b) are not identically phrased, compare § 626(c)(1) ("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter"), with § 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . ."), they are certainly similar in function. Indeed, if § 216(b)'s private right-of-action provision were incorporated by § 626(b) and hence available to ADEA plaintiffs, the analogous right of action established by § 626(c)(1) would be wholly superfluous—an interpretive problem the Court does not even pause to acknowledge. To avoid the overlap, one might read the ADEA to create an exclusive private right of action in § 626(c)(1), and then to add various embellishments, whether from elsewhere in the ADEA, see § 626(c)(2) (trial by jury), or from the incorporated parts of the FLSA, see, e. g., § 216(b) (collective actions); ibid. (attorney's fees); ibid. (liquidated damages).[4] Of course the Court's interpretation—that an ADEA plaintiff may choose § 626(c)(1) or § 216(b) as the basis for his private right of action—is also plausible. "But such a permissible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which . . . is necessary before we will determine that Congress intended to exercise its powers *107 of abrogation." Dellmuth, 491 U. S., at 232. Apparently cognizant of this rule, the Court resorts to extrinsic evidence: our prior decisions. See, e. g., ante, at 74 ("`[T]he ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA' " (alteration in original)) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 167 (1989) (citations omitted)). But judicial opinions, especially those issued subsequent to the enactments in question, have no bearing on whether Congress has clearly stated its intent to abrogate in the text of the statute. How could they, given that legislative history—which at least antedates the enactments under review—is "irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment"? Dellmuth, supra, at 230. In any event, Hoffmann-La Roche, which did not present the question of a State's Eleventh Amendment immunity,[5] is perfectly consistent with the view that the ADEA incorporates only "extras" from the FLSA, not overlapping provisions. Hoffmann-La Roche involved the ADEA's incorporation of the FLSA's authorization of collective actions, which follows § 216(b)'s individual private right-of-action provision, see § 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one *108 or more employees for and in behalf of himself or themselves and other employees similarly situated " (emphasis added)), and so may be viewed as falling outside the overlap described above.[6] B Even if § 626(b) incorporates § 216(b)'s individual rightof-action provision, that provision itself falls short of "unmistakable" clarity insofar as it describes the forum for suit as "any Federal or State court of competent jurisdiction." § 216(b) (emphasis added). For it may be that a federal court is not "competent" under the Eleventh Amendment to adjudicate a suit by a private citizen against a State unless the State consents to the suit. As we explained in Employees, "[t]he history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State." 411 U.S., at 284 (emphasis added). The Court suggests, ante, at 76-77, that its ability to distinguish a single precedent, ante, at 75-76 (discussing Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S. 573 (1946)), illuminates this aspect of § 216(b). But the Court neither acknowledges what Employees had to say on this point nor explains why it follows from the modern § 216(b)'s clarity relative to the old § 216(b) that the modern § 216(b) is clear enough as an absolute matter to satisfy the Atascadero rule, which requires "unmistakable" clarity. That is not to say that the FLSA as a whole lacks a clear statement of Congress' intent to abrogate. Section 255(d) *109 elucidates the ambiguity within § 216(b). Section 255(d), it will be recalled, suspended the running of the statute of limitations on actions under § 216(b) brought against a State or political subdivision on or before April 18, 1973 (the date Employees was decided) until "one hundred and eighty days after the effective date of the [1974 Amendments], except that such suspension shall not be applicable if in such action judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction. " § 255(d) (emphasis added). As I explained in Part II,[7] however, not only does § 255(d) on its face apply only to the FLSA, but Congress' failure to amend the ADEA's general incorporation of § 255, 29 U.S. C. § 626(e) (1988 ed.), strongly suggests that Congress paid scant attention to the impact of § 255(d) upon the ADEA. Accordingly, I cannot accept the notion that § 255(d) furnishes clarifying guidance in interpreting § 216(b) for ADEA purposes, whatever assistance it might provide to a construction of § 216(b) for FLSA purposes.[8] * * * For these reasons, I respectfully dissent from Part III of the Court's opinion.

The Age Discrimination in Employment Act of 1967 (ADEA or Act), as amended, 29 U.S. C. 621 et seq. (1994 ed. and Supp. III), makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual because of such individual's age." 29 U.S. C. 623(a)(1). In these cases, three sets of plaintiffs filed suit under the Act, seeking money damages for their state employers' alleged discrimination on the basis of age. In each case, the state employer moved to dismiss the suit on the basis of its Eleventh Amendment The District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. Appeals in the three cases were consolidated before the Court of Appeals for the Eleventh Circuit, which held that the ADEA does not validly abrogate the States' Eleventh Amendment In these cases, we are asked to consider whether the ADEA contains a clear *67 statement of Congress' intent to abrogate the States' Eleventh Amendment immunity and, if so, whether the ADEA is a proper exercise of Congress' constitutional authority. We conclude that the ADEA does contain a clear statement of Congress' intent to abrogate the States' immunity, but that the abrogation exceeded Congress' authority under 5 of the Fourteenth I A The ADEA makes it 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). The Act also provides several exceptions to this broad prohibition. For example, an employer may rely on age where it "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." 623(f)(1). The Act also permits an employer to engage in conduct otherwise prohibited by 623(a)(1) if the employer's action "is based on reasonable factors other than age," 623(f)(1), or if the employer "discharge[s] or otherwise discipline[s] an individual for good cause," 623(f)(3). Although the Act's prohibitions originally applied only to individuals "at least forty years of age but less than sixtyfive years of age," 29 U.S. C. 631 (1964 ed., Supp. III), Congress subsequently removed the upper age limit, and the Act now covers individuals age 40 and over, 29 U.S. C. 631(a). Any person aggrieved by an employer's violation of the Act "may bring a civil action in any court of competent jurisdiction" for legal or equitable relief. 626(c)(1). Section 626(b) also permits aggrieved employees to enforce the Act through certain provisions of the Fair Labor Standards Act of 1938 (FLSA), and the ADEA *68 specifically incorporates 16(b) of the FLSA, 29 U.S. C. 216(b). Since its enactment, the ADEA's scope of coverage has been expanded by amendment. Of particular importance to these cases is the Act's treatment of state employers and employees. When first passed in 1967, the ADEA applied only to private employers. See 29 U.S. C. 630(b) (1964 ed., Supp. III) (defining term "employer" to exclude "the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof"). In 1974, in a statute consisting primarily of amendments to the FLSA, Congress extended application of the ADEA's substantive requirements to the States. Fair Labor Standards Amendments of 1974 (1974 Act), Congress accomplished that expansion in scope by a simple amendment to the definition of "employer" contained in 29 U.S. C. 630(b): "The term [employer] also means a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State" Congress also amended the ADEA's definition of "employee," still defining the term to mean "an individual employed by any employer," but excluding elected officials and appointed policymakers at the state and local levels. 630(f). In the same 1974 Act, Congress amended 29 U.S. C. 216(b), the FLSA enforcement provision incorporated by reference into the ADEA. Section 216(b) now permits an individual to bring a civil action "against any employer (including a public agency) in any Federal or State court of competent jurisdiction." Section 203(x) defines "[p]ublic agency" to include "the government of a State or political subdivision thereof," and "any agency of a State, or a political subdivision of a State." Finally, in the 1974 Act, Congress added a provision prohibiting age discrimination generally in employment at the Federal Government. 29 U.S. C. 633a (1994 ed. and Supp. III). Under the current ADEA, *69 mandatory age limits for law enforcement officers and firefighters—at federal, state, and local levels—are exempted from the statute's coverage. 5 U.S. C. 3307(d), (e); 29 U.S. C. 623(j) (1994 ed., Supp. III). B In December 1994, Roderick MacPherson and Marvin Narz, ages 57 and 58 at the time, filed suit under the ADEA against their employer, the University of Montevallo, in the United States District Court for the Northern District of Alabama. In their complaint, they alleged that the university had discriminated against them on the basis of their age, that it had retaliated against them for filing discrimination charges with the Equal Employment Opportunity Commission (EEOC), and that its College of Business, at which they were associate professors, employed an evaluation system that had a disparate impact on older faculty members. MacPherson and Narz sought declaratory and injunctive relief, backpay, promotions to full professor, and compensatory and punitive damages. App. 21-25. The University of Montevallo moved to dismiss the suit for lack of subject matter jurisdiction, contending it was barred by the Eleventh No party disputes the District Court's holding that the university is an instrumentality of the State of Alabama. On September 9, 1996, the District Court granted the university's motion. MacPherson v. University of Montevallo, Civ. Action No. 94—AR-2962—S App. to Pet. for Cert. in No. 98-796, pp. 63a—71a. The court determined that, although the ADEA contains a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity, Congress did not enact or extend the ADEA under its Fourteenth Amendment 5 enforcement power. at 67a, 69a—70a. The District Court therefore held that the ADEA did not abrogate the States' Eleventh Amendment at 71a. *70 In April 1995, a group of current and former faculty and librarians of Florida State University, including J. Daniel Kimel, Jr., the named petitioner in one of today's cases, filed suit against the Florida Board of Regents in the United States District Court for the Northern District of Florida. Complaint and Demand for Jury Trial in No. 95—CV-40194, 1 Record, Doc. No. 2. The complaint was subsequently amended to add as plaintiffs current and former faculty and librarians of Florida International University. App. 41. The plaintiffs, all over age 40, alleged that the Florida Board of Regents refused to require the two state universities to allocate funds to provide previously agreed upon market adjustments to the salaries of eligible university employees. The plaintiffs contended that the failure to allocate the funds violated both the ADEA and the Florida Civil Rights Act of 1992, Fla. Stat. 760.01 et seq. because it had a disparate impact on the base pay of employees with a longer record of service, most of whom were older employees. App. 42-45. The plaintiffs sought backpay, liquidated damages, and permanent salary adjustments as relief. The Florida Board of Regents moved to dismiss the suit on the grounds of Eleventh Amendment On May 17, 1996, the District Court denied the motion, holding that Congress expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that the ADEA is a proper exercise of congressional authority under the Fourteenth No. TCA 95-40194—MMP (ND Fla.), App. to Pet. for Cert. in No. 98-796, pp. 57a—62a. In May 1996, Wellington Dickson filed suit against his employer, the Florida Department of Corrections, in the United States District Court for the Northern District of Florida. Dickson alleged that the state employer failed to promote him because of his age and because he had filed grievances with respect to the alleged acts of age discrimination. Dickson sought injunctive relief, backpay, and compensatory *71 and punitive damages. App. 83-109. The Florida Department of Corrections moved to dismiss the suit on the grounds that it was barred by the Eleventh The District Court denied that motion on November 5, 1996, holding that Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity in the ADEA, and that Congress had authority to do so under 5 of the Fourteenth Dickson v. Florida Dept. of Corrections, No. 5:96cv207—RH (ND Fla.), App. to Pet. for Cert. in No. 98-796, pp. 72a—76a. The plaintiffs in the MacPherson case, and the state defendants in the Kimel and Dickson cases, appealed to the Court of Appeals for the Eleventh Circu The United States also intervened in all three cases to defend the ADEA's abrogation of the States' Eleventh Amendment The Court of Appeals consolidated the appeals and, in a divided panel opinion, held that the ADEA does not abrogate the States' Eleventh Amendment Judge Edmondson, although stating that he believed "good reason exists to doubt that the ADEA was (or could have been properly) enacted pursuant to the Fourteenth Amendment," rested his opinion on the ADEA's lack of unmistakably clear language evidencing Congress' intent to abrogate the States' sovereign He noted that the ADEA lacks any reference to the Eleventh Amendment or to the States' sovereign immunity and does not contain, in one place, a plain statement that States can be sued by individuals in federal court. -1431. Judge Cox concurred in Judge Edmondson's ultimate conclusion that the States are immune from ADEA suits brought by individuals in federal court. Judge Cox, however, chose not to address "the thorny of Congress's intent," but instead found that Congress lacks the power under 5 of the Fourteenth Amendment to abrogate the States' Eleventh Amendment immunity under the ADEA. *72 He concluded that "the ADEA confers rights far more extensive than those the Fourteenth Amendment provides," and that "Congress did not enact the ADEA as a proportional response to any widespread violation of the elderly's constitutional rights." Chief Judge Hatchett dissented from both grounds. We granted certiorari, to resolve a conflict among the Federal Courts of Appeals on the question whether the ADEA validly abrogates the States' Eleventh Amendment Compare cert. pending, No. 98-24; cert. pending, No. 98-1178; cert. pending, No. 98-821; ; ; and with cert. pending, No. 98-1235; and II The Eleventh Amendment states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although today's cases concern suits brought by citizens against their own States, this Court has long "`understood the Eleventh Amendment to stand not so much for what it *73 says, but for the presupposition which it confirms.' " Seminole of Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. College Savings ; Seminole at ; see Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority. Seminole III To determine whether a federal statute properly subjects States to suits by individuals, we apply a "simple but stringent test: `Congress may abrogate the States' constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.' " We agree with petitioners that the ADEA satisfies that test. The ADEA states that its provisions "shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U.S. C. 626(b). Section 216(b), in turn, clearly provides for suits by individuals against States. That provision authorizes employees to maintain actions for backpay "against any employer (including a public agency) *74 in any Federal or State court of competent jurisdiction" Any doubt concerning the identity of the "public agency" defendant named in 216(b) is dispelled by looking to 203(x), which defines the term to include "the government of a State or political subdivision thereof," and "any agency of a State, or a political subdivision of a State." Read as a whole, the plain language of these provisions clearly demonstrates Congress' intent to subject the States to suit for money damages at the hands of individual employees. Respondents maintain that these statutory sections are less than "unmistakably clear" for two reasons. Brief for Respondents First, they note that the ADEA already contains its own enforcement provision, 626(c)(1),which provides in relevant part that "[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." Respondents claim that the existence of 626(c)(1) renders Congress' intent to incorporate the clear statement of abrogation in 216(b), the FLSA's enforcement provision, ambiguous. The text of the ADEA forecloses respondents' argument. Section 626(b) clearly states that the ADEA "shall be enforced in accordance with the powers, remedies, and procedures provided in [section 216(b)] and subsection (c)of this section." 626(b) In accord with that statutory language, we have explained repeatedly that 626(b)incorporates the FLSA's enforcement provisions, and that those remedial options operate together with 626(c)(1). See ; Hoffmann-La Roche ; Lorillard v. Pons, 434 U. S. *75 575, 582 (1978) ("[B]ut for those changes Congress expressly made [in the ADEA], it intended to incorporate fully the remedies and procedures of the FLSA"). Respondents' argument attempts to create ambiguity where, according to the statute's text and this Court's repeated interpretations thereof, there is none. Respondents next point to the phrase "court of competent jurisdiction" in 216(b), and contend that it makes Congress' intent to abrogate less than clear. Relying on our decision in the distinct context of a state waiver of sovereign immunity, Kennecott Copper respondents maintain that perhaps Congress simply intended to permit an ADEA suit against a State only in those cases where the State previously has waived its Eleventh Amendment immunity to su We disagree. Our decision in Kennecott Copper must be read in context. The petitioner there contended that Utah had waived its Eleventh Amendment immunity to suit in federal court through a state statute that authorized taxpayers to pay their taxes under protest and "`thereafter bring an action in any court of competent jurisdiction for the return thereof' " (quoting Utah Code Ann. 80-5—76 (1943)). Although the statute undoubtedly provided for suit against the State of Utah in its own courts, we held that the statute fell short of the required "clear declaration by a State of its consent to be sued in the federal courts." -580 Section 216(b) contains no such ambiguity. The statute authorizes employee suits against States "in any Federal or State court of competent jurisdiction." 216(b) That language eliminates the ambiguity identified in Kennecott Copper —whether Utah intended to permit suits against the sovereign in state court only, or in state and federal court. Under 216(b), the answer to that question is clear—actions may be maintained in federal and state court. That choice of language sufficiently indicates Congress' intent, *76 in the ADEA, to abrogate the States' Eleventh Amendment immunity to suits by individuals. Although Justice Thomas concedes in his opinion that our cases have never required that Congress make its clear statement in a single section or in statutory provisions enacted at the same time, post, at 104-105 (opinion concurring in part and dissenting in part), he concludes that the ADEA lacks the requisite clarity because of the "sequence of events" surrounding the enactment and amendment of 216(b) and 626(b), post, at 102. Justice Thomas states that he is unwilling to assume that when Congress amended 216(b) in 1974, it recognized the consequences that amendment would have for the ADEA. We respectfully disagree. The fact that Congress amended the ADEA itself in the same 1974 Act makes it more than clear that Congress understood the consequences of its actions. Indeed, Congress amended 216(b) to provide for suits against States in precisely the same Act in which it extended the ADEA's substantive requirements to the States. See 1974 Act, 6(d)(1), (amending 216(b)); (a), Those provisions confirm for us that the effect on the ADEA of the 216(b) amendment was not mere happenstance. In any event, we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation (e. g., amending incorporated provisions as opposed to enacting a statute for the first time). The clear statement inquiry focuses on what Congress did enact, not when it did so. We will not infer ambiguity from the sequence in which a clear textual statement is added to a statute. We also disagree with Justice Thomas' remaining points, see post, at 105-109. Although the ADEA does contain its own enforcement provision in 626(c)(1), the text of 626(b) acknowledges 626(c)(1)'s existence and makes clear that the ADEA also incorporates 216(b), save as indicated *77 otherwise in 626(b)'s proviso. See 626(b) ("The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sectio[n] 216 (except for subsection (a) thereof) and subsection (c) of this section " ). We fail to see how the interpretation suggested by Justice Thomas, under which 626(b) would carry over only those 216(b) "embellishments" not already provided for in 626(c)(1) except for the authorization of suits against States, see post, at 106, could be a permissible one. To accept that interpretation, for example, one would have to conclude that Congress intended to incorporate only the portion of 216(b)'s third sentence that provides for collective actions, but not the part of the very same sentence that authorizes suits against States. See 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated"). Justice Thomas also concludes that 216(b) itself fails the clear statement test. Post, at 108-109. As we have already explained, the presence of the word "competent" in 216(b) does not render that provision less than "unmistakably clear." See Justice Thomas' reliance on a single phrase from our decision in of Dept. of Public Health and Welfare of see post, at 108, as support for the contrary proposition is puzzling, given his separate argument with respect to 6(d)(2)(A) of the 1974 Act. Crucial to Justice Thomas' argument on that front is his acknowledgment that Congress did intend in the 1974 amendments to permit "FLSA plaintiffs who had been frustrated by state defendants' invocation of Eleventh Amendment immunity under to avail themselves of the newly amended 216(b)." Post, at 103; *78 see also post, at 108-109. We agree with the implication of that statement: In response to Congress clearly intended through "the newly amended 216(b)" to abrogate the States' sovereign In light of our conclusion that Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity, we now must determine whether Congress effectuated that abrogation pursuant to a valid exercise of constitutional authority. IV A This is not the first time we have considered the constitutional validity of the 1974 extension of the ADEA to state and local governments. In we held that the ADEA constitutes a valid exercise of Congress' power "[t]o regulate Commerce among the several States," Art. I, 8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Because we found the ADEA valid under Congress' Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress' power under 5 of the Fourteenth 460 U.S., at But see Resolution of today's cases requires us to decide that question. In Seminole we held that Congress lacks power under Article I to abrogate the States' sovereign -73. "Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." Last Term, in a series of three decisions, we reaffirmed that central holding of Seminole See College Savings ; Florida Postsecondary Ed. Expense Bd. v. College Savings *79 ; Indeed, in College Savings we rested our decision to overrule the constructive waiver rule of in part, on our Seminole holding. See College Savings ("Recognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole "). Under our firmly established precedent then, if the ADEA rests solely on Congress' Article I commerce power, the private petitioners in today's cases cannot maintain their suits against their state employers. Justice Stevens disputes that well-established precedent again. Compare post, p. 92 (opinion dissenting in part and concurring in part), with ; College Savings n. 2 ; ; Florida ; Seminole -100 ; In we explained that, "[a]lthough the sovereign immunity of the States derives at least in part from the commonlaw tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design." For purposes of today's decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. See at -7; College Savings at 687-691; Seminole at -55, 59-73; Indeed, the present dissenters' refusal to accept the validity and natural import of decisions like Hans, rendered over a full century ago by this Court, makes it difficult *80 to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. Compare Hans, 14-16, with post, (Stevens, J., dissenting in part and concurring in part). Today we adhere to our holding in Seminole : Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals. Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States' sovereign In we recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of 5 of the Fourteenth " Since our decision in Fitzpatrick, we have reaffirmed the validity of that congressional power on numerous occasions. See, e. g., College Savings ; Florida at -637; ; Seminole Accordingly, the private petitioners in these cases may maintain their ADEA suits against the States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under 5. B The Fourteenth Amendment provides, in relevant part: "Section 1. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." As we recognized most recently in City of 5 is an affirmative grant of power to Congress. "It is for Congress in the first instance to *81 `determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' and its conclusions are entitled to much deference." ). Congress' 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Rather, Congress' power "to enforce" the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power. For example, Congress cannot "decree the substance of the Fourteenth Amendment's restrictions on the States. It has been given the power `to enforce,' not the power to determine what constitutes a constitutional violation." The ultimate interpretation and determination of the Fourteenth Amendment's substantive meaning remains the province of the Judicial Branch. In City of we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at is often difficult. -520. The line between the two is a fine one. Accordingly, recognizing that "Congress must have wide latitude in determining where [that line] lies," we held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." In City of we applied that "congruence and proportionality" test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate legislation under 5. We first noted that the legislative record contained very little evidence of the unconstitutional conduct *82 purportedly targeted by RFRA's substantive provisions. Rather, Congress had uncovered only "anecdotal evidence" that, standing alone, did not reveal a "widespread pattern of religious discrimination in this country." Second, we found that RFRA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." Last Term, we again had occasion to apply the "congruence and proportionality" test. In Florida we considered the validity of the Eleventh Amendment abrogation provision in the Patent and Plant Variety Protection Remedy Clarification Act (Patent Remedy Act). We held that the statute, which subjected States to patent infringement suits, was not appropriate legislation under 5 of the Fourteenth The Patent Remedy Act failed to meet our congruence and proportionality test first because "Congress identified no pattern of patent infringement by the States, let alone a pattern of constitutional violations." Moreover, because it was unlikely that many of the acts of patent infringement affected by the statute had any likelihood of being unconstitutional, we concluded that the scope of the Act was out of proportion to its supposed remedial or preventive objectives. Instead, "[t]he statute's apparent and more basic aims were to provide a uniform remedy for patent infringement and to place States on the same footing as private parties under that regime." -648. While we acknowledged that such aims may be proper congressional concerns under Article I, we found them insufficient to support an abrogation of the States' Eleventh Amendment immunity after Seminole Florida C Applying the same "congruence and proportionality" test in these cases, we conclude that the ADEA is not "appropriate *83 legislation" under 5 of the Fourteenth Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act. We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. See ; ; Massachusetts Bd. of In all three cases, we held that the age classifications at did not violate the Equal Protection Clause. See ; ; Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy." Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a "`history of purposeful unequal treatment.' " ). Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience 427 U.S., -314. Accordingly, as we recognized in and age is not a suspect classification under the Equal Protection Clause. See, e. g., ; ; -314. States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest. The rationality commanded by the Equal Protection Clause does not require States to match age distinctions and the legitimate interests they serve with razorlike precision. As *84 we have explained, when conducting rational basis review "we will not overturn such [government action] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the [government's] actions were irrational." In contrast, when a State discriminates on the basis of race or gender, we require a tighter fit between the discriminatory means and the legitimate ends they serve. See, e. g., Adarand Constructors, 5 U.S. 200, ; Mississippi Univ. for (holding that gender classifications are constitutional only if they serve "`important governmental objectives and the discriminatory means employed' are `substantially related to the achievement of those objectives' " ). Under the Fourteenth Amendment, a State may rely on age as a proxy for other qualities, abilities, or characteristics that are relevant to the State's legitimate interests. The Constitution does not preclude reliance on such generalizations. That age proves to be an inaccurate proxy in any individual case is irrelevant. "[W]here rationality is the test, a State `does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.' " ). Finally, because an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the "facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." ; see Our decisions in and illustrate these principles. In all three cases, we held that the States' reliance on broad generalizations with respect to age did *85 not violate the Equal Protection Clause. In we upheld against an equal protection challenge a Massachusetts statute requiring state police officers to retire at age 50. The State justified the provision on the ground that the age classification assured the State of the physical preparedness of its officers. -3. Although we acknowledged that Officer himself was in excellent physical health and could still perform the duties of a state police officer, we found that the statute clearly met the requirements of the Equal Protection Clause. "That the State chooses not to determine fitness more precisely through individualized testing after age 50 [does not prove] that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation." In we considered an equal protection challenge to a federal statute requiring Foreign Service officers to retire at age 60. We explained: "If increasing age brings with it increasing susceptibility to physical difficulties, the fact that individual Foreign Service employees may be able to perform past age 60 does not invalidate [the statute] any more than did the similar truth undercut compulsory retirement at age 50 for uniformed state police in " U.S., at 108. Finally, in we upheld a provision of the Missouri Constitution that required judges to retire at age 70. Noting that the Missouri provision was based on a generalization about the effect of old age on the ability of individuals to serve as judges, we acknowledged that "[i]t is far from true that all judges suffer significant deterioration in performance at age 70," "[i]t is probably not true that most do," and "[i]t may not be true at all." 501 U.S., Nevertheless, because Missouri's age classification was subject only to rational basis review, we held that the State's reliance on such imperfect generalizations was entirely proper under the Equal Protection Clause. These decisions thus demonstrate that the constitutionality of state classifications on the basis of age cannot be determined *86 on a person-by-person basis. Our Constitution permits States to draw lines on the basis of age when they have a rational basis for doing so at a class-based level, even if it "is probably not true" that those reasons are valid in the majority of cases. Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is "so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior." City of 521 U. S., The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. The ADEA makes unlawful, in the employment context, all "discriminat[ion] against any individual because of such individual's age." 29 U.S. C. 623(a)(1). Petitioners, relying on the Act's exceptions, dispute the extent to which the ADEA erects protections beyond the Constitution's requirements. They contend that the Act's prohibition, considered together with its exceptions, applies only to arbitrary age discrimination, which in the majority of cases corresponds to conduct that violates the Equal Protection Clause. We disagree. Petitioners stake their claim on 623(f)(1). That section permits employers to rely on age when it "is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business." Petitioners' reliance on the "bona fide occupational qualification" (BFOQ) defense is misplaced. Our interpretation of 623(f)(1) in Western Air conclusively demonstrates that the defense is a far cry from the rational basis standard we apply to age discrimination under the Equal Protection Clause. The petitioner in that case maintained that, pursuant to the BFOQ defense, employers must be permitted to rely on age when such reliance *87 has a "rational basis in fact." We rejected that argument, explaining that "[t]he BFOQ standard adopted in the statute is one of `reasonable necessity,' not reasonableness," and that the ADEA standard and the rational basis test are "significantly different," Under the ADEA, even with its BFOQ defense, the State's use of age is prima facie unlawful. See 29 U.S. C. 623(a)(1); Western Air Application of the Act therefore starts with a presumption in favor of requiring the employer to make an individualized determination. See In Western Air we concluded that the BFOQ defense, which shifts the focus from the merits of the individual employee to the necessity for the age classification as a whole, is "`meant to be an extremely narrow exception to the general prohibition' of age discrimination contained in the ADEA." We based that conclusion on both the restrictive language of the statutory BFOQ provision itself and the EEOC's regulation interpreting that exception. See 29 CFR 1625.6(a) To succeed under the BFOQ defense, we held that an employer must demonstrate either "a substantial basis for believing that all or nearly all employees above an age lack the qualifications required for the position," or that reliance on the age classification is necessary because "it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job." — 423 Measured against the rational basis standard of our equal protection jurisprudence, the ADEA plainly imposes substantially higher burdens on state employers. Thus, although it is true that the existence of the BFOQ defense makes the ADEA's prohibition of age discrimination *88 less than absolute, the Act's substantive requirements nevertheless remain at a level akin to our heightened scrutiny cases under the Equal Protection Clause. Petitioners also place some reliance on the next clause in 623(f)(1), which permits employers to engage in conduct otherwise prohibited by the Act "where the differentiation is based on reasonable factors other than age." This exception confirms, however, rather than disproves, the conclusion that the ADEA's protection extends beyond the requirements of the Equal Protection Clause. The exception simply makes clear that "[t]he employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly." Hazen Paper Under the Constitution, in contrast, States may rely on age as a proxy for other characteristics. See 501 U. S., ; U. S., at 108-109, 112 ; -317 Section 623(f)(1), then, merely confirms that Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny. That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our 5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that 5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States' legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress' action. See, e. g., Flor- *89 ida -647; City of -531. "The appropriateness of remedial measures must be considered in light of the evil presented. Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one." at 530 ). Our examination of the ADEA's legislative record confirms that Congress' 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. The evidence compiled by petitioners to demonstrate such attention by Congress to age discrimination by the States falls well short of the mark. That evidence consists almost entirely of isolated sentences clipped from floor debates and legislative reports. See, e. g., S. Rep. No. 93-846, p. 112 (1974); S. Rep. No. 93-690, p. 56 (1974); H. R. Rep. No. 93— 913, pp. 40-41 (1974); S. Rep. No. 93-300, p. 57 ; Senate Special Committee on Aging, Improving the Age Discrimination Law, 93d Cong., 1st Sess., 14 ; 113 Cong. Rec. 34742 (1967) (remarks of Rep. Steiger); ; 110 Cong. Rec. 10 (remarks of Sen. Smathers); ; The statements of Senator Bentsen on the floor of the Senate are indicative of the strength of the evidence relied on by petitioners. See, e. g., 118 Cong. Rec. 97 (1972) (stating that "there is ample evidence that age discrimination is broadly practiced in government employment," but relying on newspaper articles about federal employees); ; *90 Petitioners place additional reliance on Congress' consideration of a 1966 report prepared by the State of California on age discrimination in its public agencies. See Hearings on H. R. 3 et al. before the Subcommittee on Labor of the House of Representatives Committee on Education and Labor, 90th Cong., 1st Sess., pp. 161-201 (1967) (Hearings) ). Like the assorted sentences petitioners cobble together from a decade's worth of congressional reports and floor debates, the California study does not indicate that the State had engaged in any unconstitutional age discrimination. In fact, the report stated that the majority of the age limits uncovered in the state survey applied in the law enforcement and firefighting occupations. Hearings 168. Those age limits were not only permitted under California law at the time, see ib but are also currently permitted under the ADEA. See 5 U.S. C. 3307(d), (e); 29 U.S. C. 623(j) (1994 ed., Supp. III). Even if the California report had uncovered a pattern of unconstitutional age discrimination in the State's public agencies at the time, it nevertheless would have been insufficient to support Congress' 1974 extension of the ADEA to every State of the Union. The report simply does not constitute "evidence that [unconstitutional age discrimination] had become a problem of national import." Florida Finally, the United States' argument that Congress found substantial age discrimination in the private sector, see Brief for United States 38, is beside the point. Congress made no such findings with respect to the States. Although we also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination *91 by the States. See Florida A review of the ADEA's legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the 5 inquiry, ; City of -532, Congress' failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Act's substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress' power under 5 of the Fourteenth The ADEA's purported abrogation of the States' sovereign immunity is accordingly invalid. D Our decision today does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. We hold only that, in the ADEA, Congress did not validly abrogate the States' sovereign immunity to suits by private individuals. State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union.[*] Those avenues *92 of relief remain available today, just as they were before this decision. Because the ADEA does not validly abrogate the States' sovereign immunity, however, the present suits must be dismissed. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting in part and concurring in part. Congress' power to regulate the American economy includes the power to regulate both the public and the private *93 sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress' power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power. See Seminole of ; The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States' "dignity and respect" from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement. See generally Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, Colum. L. Rev. 3 (19). It is the Framers' compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. The composition of the Senate was originally determined by the legislatures of the States, which would guarantee that their interests could not be ignored by Congress.[1]*94 The Framers also directed that the House be composed of Representatives selected by voters in the several States, the consequence of which is that "the states are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, the separate geographical determinants of national as well as local politics." at 6. Whenever Congress passes a statute, it does so against the background of state law already in place; the propriety of taking national action is thus measured by the metric of the existing state norms that Congress seeks to supplement or supplant.[2] The persuasiveness of any justification for overcoming legislative inertia and taking national action, either creating new federal obligations or providing for their enforcement, must necessarily be judged in reference to state interests, as expressed in existing state laws. The precise scope of federal laws, of course, can be shaped with nuanced attention to state interests. The Congress also has the authority to grant or withhold jurisdiction in lower federal courts. The burden of being haled into a federal forum for the enforcement of federal law, thus, can be expanded or contracted as Congress deems proper, which decision, like all other legislative acts, necessarily contemplates state interests. Thus, Congress can use its broad range of flexible legislative tools to approach the delicate of how to balance local and national interests in the *95 most responsive and careful manner.[3] It is quite evident, therefore, that the Framers did not view this Court as the ultimate guardian of the States' interest in protecting their own sovereignty from impairment by "burdensome" federal laws.[4] *96 Federalism concerns do make it appropriate for Congress to speak clearly when it regulates state action. But when it does so, as it has in these cases,[5] we can safely presume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. In my judgment, the question whether those enforcement proceedings should be conducted exclusively by federal agencies, or may be brought by private parties as well, is a matter of policy for Congress to decide. In either event, once Congress has made its policy choice, the sovereignty concerns of the several States are satisfied, and the federal interest in evenhanded enforcement of federal law, explicitly endorsed in Article VI of the Constitution, does not countenance further limitations. There is not a word in the text of the Constitution supporting the Court's conclusion that the judgemade doctrine of sovereign immunity limits Congress' power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers' decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority's repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President. *97 The Eleventh Amendment simply does not support the Court's view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. See Atascadero State 6-9 Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be "abrogated" by an Act of Congress. Seminole U. S., at 93 Here, however, private petitioners did not invoke the federal courts' diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today's decision (relying as it does on Seminole ) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity,[6] which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to "abrogate" the Court's "Eleventh Amendment" version of the common-law defense of sovereign immunity to do so. That is the essence of the Court's holding in I remain convinced that Union was correctly decided and that the decision of five Justices in Seminole to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so *98 fundamentally inconsistent with the Framers' conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. See, e. g., 5 U.S. 393, And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis ` protection of reliance interests. It cannot be credibly maintained that a State's ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole as that decision leaves open a State's liability upon enforcement of federal law by federal agencies. Nor can a State find solace in the stare decisis interest of promoting "the evenhanded and consistent development of legal principles." That principle is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court's decision today and in the equally misguided opinion of Further still, the Seminole decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress' 5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law.[7] The kind of judicial activism manifested in cases like Seminole *99 Florida Postsecondary Ed. Expense Bd. v. College Savings and College Savings represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises. Accordingly, I respectfully dissent. Justice Thomas, with whom Justice Kennedy joins, concurring in part and dissenting in part. In Atascadero State this Court, cognizant of the impact of an abrogation of the States' Eleventh Amendment immunity from suit in federal court on "the usual constitutional balance between the States and the Federal Government," reaffirmed that "Congress may abrogate only by making its intention unmistakably clear in the language of the statute." at This rule "`assures that the legislature has in fact faced, and intended to bring into the critical matters involved in the judicial decision.' " And it is especially applicable when this Court deals with a statute like the Age Discrimination in Employment Act of 1967 (ADEA), whose substantive mandates extend to "elevator operators, janitors, charwomen, security guards, secretaries, and the like in every office building in a State's governmental hierarchy." of Dept. of Public Health and Welfare of 5 Because I think that Congress has not made its intention to abrogate "unmistakably clear" in the text of the ADEA, I respectfully dissent from Part III of the Court's opinion.[1] *100 I It is natural to begin the clear statement inquiry by examining those provisions that reside within the four corners of the Act in question. Private petitioners and the government correctly observe that the ADEA's substantive provisions extend to the States as employers, see 29 U.S. C. 623(a) (providing that "[i]t shall be unlawful for an employer" to engage in certain age discriminatory practices); 630(b) (defining "employer" to include "a State or a political subdivision of a State"); 630(f) (defining "employee" as "an individual employed by any employer"), and that the ADEA establishes an individual right-of-action provision for "aggrieved" persons, see 626(c)(1) ("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter"). Since, in the case of a state employee, the only possible defendant is the State, it is submitted that Congress clearly expressed its intent that a state employee may qualify as a "person aggrieved" under 626(c)(1) and bring suit against his state employer in federal court. While the argument may have some logical appeal, it is squarely foreclosed by precedent—which explains the Court's decision to employ different reasoning in finding a clear statement, see ante, at 73. In we confronted the pre-1974 version of the Fair Labor Standards Act of 1938 (FLSA), which clearly extended as a substantive matter to state employers, and included the following private right-of-action provision: "`Action to recover such liability may be maintained in any court of competent jurisdiction.' " at 3 (quoting 29 U.S. C. 216(b) (1970 ed.)). We held that this language fell short of a clear statement of Congress' intent to abrogate. The FLSA's substantive coverage of state employers could be given meaning through enforcement by the Secretary of Labor, which would raise no Eleventh Amendment 411 U.S., at 5-6, and we were "reluctant to believe that Congress in pursuit *101 of a harmonious federalism desired to treat the States so harshly" by abrogating their Eleventh Amendment immunity, at 6. See also, e. g., (holding that Congress had not clearly stated its intent to abrogate in a statute that authorized "parties aggrieved to `bring a civil action in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy' ") (quoting 20 U.S. C. 14(e)(2) (1982 ed.)). The ADEA is no different from the version of the FLSA we examined in It unquestionably extends as a substantive matter to state employers, but does not mention States in its right-of-action provision: "Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter." 29 U.S. C. 626(c)(1). This provision simply does not reveal Congress' attention to the augmented liability and diminished sovereignty concomitant to an abrogation of Eleventh Amendment "Congress, acting responsibly, would not be presumed to take such action silently." at 4-5. II Perhaps recognizing the obstacle posed by private petitioners and the Government contend that the ADEA incorporates a clear statement from the FLSA. The ADEA's incorporating reference, which has remained constant since the enactment of the ADEA in 1967, provides: "The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section." 29 U.S. C. 626(b). It is argued that 216(b)—one of the incorporated provisions from the FLSA—unequivocally abrogates the States' immunity from suit in federal court. That section states in relevant part that "[a]n action *102 to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction." 29 U.S. C. 216(b). But, as noted in the above discussion of 216(b) was not always so worded. At the time the ADEA was enacted in 1967, a relatively sparse version of 216(b)— which held insufficient to abrogate the States' immunity—provided that an "[a]ction to recover such liability may be maintained in any court of competent jurisdiction." 29 U.S. C. 216(b) (1964 ed.). It was not until 1974 that Congress modified 216(b) to its current formulation. Fair Labor Standards Amendments of 1974 (1974 Amendments), 6(d)(1), This sequence of events suggests, in my view, that we should approach with circumspection any theory of "clear statement by incorporation." Where Congress amends an Act whose provisions are incorporated by other Acts, the bill under consideration does not necessarily mention the incorporating references in those other Acts, and so fails to inspire confidence that Congress has deliberated on the consequences of the amendment for the other Acts. That is the case here. The legislation that amended 216(b), 6(d)(1) of the 1974 Amendments, did not even acknowledge 626(b). And, given the purpose of the clear statement rule to "`assur[e] that the legislature has in fact faced' " the of abrogation, 491 U. S., at (quoting 404 U. S., at ), I am unwilling to indulge the fiction that Congress, when it amended 216(b), recognized the consequences for a separate Act (the ADEA) that incorporates the amended provision. To be sure, of the 1974 Amendments, did modify certain provisions of the ADEA, which might suggest that Congress understood the impact of 6(d)(1) on the ADEA. See ante, at 76. But 6(d)(2)(A), another of the 1974 Amendments, suggests just the opposite. Section *103 6(d)(2)(A) added to the statute of limitations provision of the FLSA, 29 U.S. C. 255, a new subsection (d), which suspended the running of the statutory periods of limitation on "any cause of action brought under section 16(b) of the [FLSA, 29 U.S. C. 216(b)] on or before April 18, 1973," the date was decided, until "one hundred and eighty days after the effective date of [the 1974 Amendments]." The purpose of this new subsection—revealed not only by its reference to the date was decided, but also by its exception for actions in which "judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction"—was to allow FLSA plaintiffs who had been frustrated by state defendants' invocation of Eleventh Amendment immunity under to avail themselves of the newly amended 216(b).[2] It appears, however, that Congress was oblivious to the impact of 6(d)(2)(A) on the ADEA. The new 255(d), by operation of 7(e) of the ADEA, 29 U.S. C. 626(e) (1988 ed.) ("Sectio[n] 255 of this title shall apply to actions under this chapter"),[3] automatically became part of the ADEA in 1974. And yet the new 255(d) could have no possible application to the ADEA because, as the Court observes, ante, at 76 (citing (a) of the 1974 Amendments), the ADEA's substantive mandates did not even apply to the States until the 1974 Amendments. Thus, before 1974, *104 there were no ADEA suits against States that could be affected by 255(d)'s tolling provision. If Congress had recognized this "over inclusiveness" problem, it likely would have amended 626(e) to incorporate only 255(a)—(c). Cf. 626(b) (incorporating "the powers, remedies, and procedures provided in sectio[n] 216 (except for subsection (a) thereof ") ). But since Congress did not do so, we are left to conclude that Congress did not clearly focus on the impact of 6(d)(2)(A) on the ADEA. And Congress' insouciance with respect to the impact of 6(d)(2)(A) suggests that Congress was similarly inattentive to the impact of 6(d)(1). Insofar as 6(d)(2)(A) is closer to 6(d)(1) in terms of space and purpose than is the implication I would draw from 6(d)(2)(A) almost certainly outweighs the inference the Court would draw from In any event, the notion that of the 1974 Amendments evidences Congress' awareness of every last ripple those amendments might cause in the ADEA is at best a permissible inference, not "the unequivocal declaration which is necessary before we will determine that Congress intended to exercise its powers of abrogation." The Court advances a more general critique of my approach, explaining that "we have never held that Congress must speak with different gradations of clarity depending on the specific circumstances of the relevant legislation" Ante, at 76. But that descriptive observation, with which I agree, is hardly probative in light of the fact that a "clear statement by incorporation" argument has not to date been presented to this Court. I acknowledge that our previous cases have not required a clear statement to appear within a single section or subsection of an Act. overruled on other grounds, Seminole of ; see also Nor have our cases required that such separate sections or subsections of an Act be passed at the same time. Union and n. 2 (consulting original provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 and 1986 amendments to that Act). But, even accepting Union to be correctly decided, I do not think the situation where Congress amends an incorporated provision is analogous to Union In the Union setting, where the later Congress actually amends the earlier enacted Act, it is reasonable to assume that the later Congress focused on each of the various provisions, whether new or old, that combine to express an intent to abrogate. III Even if a clarifying amendment to an incorporated provision might sometimes provide a clear statement to abrogate for purposes of the Act into which the provision is incorporated, this is not such a case for two reasons. First, 626(b) does not clearly incorporate the part of 216(b) that establishes a private right of action against employers. Second, even assuming 626(b) incorporates 216(b) in its entirety, 216(b) itself falls short of an "unmistakably clear" expression of Congress' intent to abrogate the States' Eleventh Amendment immunity from suit in federal court. A I do not dispute that 626(b) incorporates into the ADEA some provisions of 216(b). But it seems to me at least open to debate whether 626(b) incorporates the portion of 216(b) that creates an individual private right of action, for the ADEA already contains its own private right-of-action provision— 626(c)(1). See ("The ADEA contains a vital element found in both Title VII and the Fair Labor Standards Act: It grants an injured employee a *106 right of action to obtain the authorized relief. 29 U.S. C. 626(c)"); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 573-574 ("The ADEA grants any aggrieved person the right to sue for legal or equitable relief that will effectuate the purposes of the Act" (citing 626(c)(1)) (footnote omitted)). While the right-of-action provisions in 626(c) and 216(b) are not identically phrased, compare 626(c)(1) ("Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter"), with 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction"), they are certainly similar in function. Indeed, if 216(b)'s private right-of-action provision were incorporated by 626(b) and hence available to ADEA plaintiffs, the analogous right of action established by 626(c)(1) would be wholly superfluous—an interpretive problem the Court does not even pause to acknowledge. To avoid the overlap, one might read the ADEA to create an exclusive private right of action in 626(c)(1), and then to add various embellishments, whether from elsewhere in the ADEA, see 626(c)(2) (trial by jury), or from the incorporated parts of the FLSA, see, e. g., 216(b) (collective actions); ;[4] Of course the Court's interpretation—that an ADEA plaintiff may choose 626(c)(1) or 216(b) as the basis for his private right of action—is also plausible. "But such a permissible inference, whatever its logical force, would remain just that: a permissible inference. It would not be the unequivocal declaration which is necessary before we will determine that Congress intended to exercise its powers *107 of abrogation." Apparently cognizant of this rule, the Court resorts to extrinsic evidence: our prior decisions. See, e. g., ante, at 74 ("`[T]he ADEA incorporates enforcement provisions of the Fair Labor Standards Act of 1938, and provides that the ADEA shall be enforced using certain of the powers, remedies, and procedures of the FLSA' " (alteration in original)) ). But judicial opinions, especially those d subsequent to the enactments in question, have no bearing on whether Congress has clearly stated its intent to abrogate in the text of the statute. How could they, given that legislative history—which at least antedates the enactments under review—is "irrelevant to a judicial inquiry into whether Congress intended to abrogate the Eleventh Amendment"? In any event, Hoffmann-La Roche, which did not present the question of a State's Eleventh Amendment immunity,[5] is perfectly consistent with the view that the ADEA incorporates only "extras" from the FLSA, not overlapping provisions. Hoffmann-La Roche involved the ADEA's incorporation of the FLSA's authorization of collective actions, which follows 216(b)'s individual private right-of-action provision, see 216(b) ("An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one *108 or more employees for and in behalf of himself or themselves and other employees similarly situated " ), and so may be viewed as falling outside the overlap described above.[6] B Even if 626(b) incorporates 216(b)'s individual rightof-action provision, that provision itself falls short of "unmistakable" clarity insofar as it describes the forum for suit as "any Federal or State court of competent jurisdiction." 216(b) For it may be that a federal court is not "competent" under the Eleventh Amendment to adjudicate a suit by a private citizen against a State unless the State consents to the su As we explained in "[t]he history and tradition of the Eleventh Amendment indicate that by reason of that barrier a federal court is not competent to render judgment against a nonconsenting State." 411 U.S., at 4 The Court suggests, ante, at 76-77, that its ability to distinguish a single precedent, ante, ), illuminates this aspect of 216(b). But the Court neither acknowledges what had to say on this point nor explains why it follows from the modern 216(b)'s clarity relative to the old 216(b) that the modern 216(b) is clear enough as an absolute matter to satisfy the Atascadero rule, which requires "unmistakable" clarity. That is not to say that the FLSA as a whole lacks a clear statement of Congress' intent to abrogate. Section 255(d) *109 elucidates the ambiguity within 216(b). Section 255(d), it will be recalled, suspended the running of the statute of limitations on actions under 216(b) brought against a State or political subdivision on or before April 18, 1973 (the date was decided) until "one hundred and eighty days after the effective date of the [1974 Amendments], except that such suspension shall not be applicable if in such action judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction. " 255(d) As I explained in Part II,[7] however, not only does 255(d) on its face apply only to the FLSA, but Congress' failure to amend the ADEA's general incorporation of 255, 29 U.S. C. 626(e) (1988 ed.), strongly suggests that Congress paid scant attention to the impact of 255(d) upon the ADEA. Accordingly, I cannot accept the notion that 255(d) furnishes clarifying guidance in interpreting 216(b) for ADEA purposes, whatever assistance it might provide to a construction of 216(b) for FLSA purposes.[8] * * * For these reasons, I respectfully dissent from Part III of the Court's opinion.

Justice Kennedy

majority

Smith v. Doe

2003-03-05

https://www.courtlistener.com/opinion/127899/smith-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127899/

2002-030

The Alaska Sex Offender Registration Act requires convicted sex offenders to register with law enforcement authorities, and much of the information is made public. We must decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause. I A The State of Alaska enacted the Alaska Sex Offender Registration Act (Act) on May 12, 1994. 1994 Alaska Sess. Laws ch. 41. Like its counterparts in other States, the Act is termed a "Megan's Law." Megan Kanka was a 7-year-old New Jersey girl who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim's family, had prior convictions for sex offenses against children. The crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, 108 Stat. 2038, as amended, 42 U.S. C. § 14071, which conditions certain federal law enforcement funding on the States' adoption of sex offender registration laws and sets *90 minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan's Law. The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive. 1994 Alaska Sess. Laws ch. 41, § 12(a). The Act requires any "sex offender or child kidnapper who is physically present in the state" to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is at liberty). Alaska Stat. §§ 12.63.010(a), (b) (2000). Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. § 12.63.010(a). The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access, and postconviction treatment history. § 12.63.010(b)(1). He must permit the authorities to photograph and fingerprint him. § 12.63.010(b)(2). If the offender was convicted of a single, nonaggravated sex crime, he must provide annual verification of the submitted information for 15 years. §§ 12.63.010(d)(1), 12.63.020(a)(2). If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. §§ 12.63.010(d)(2), 12.63.020(a)(1). The offender must notify his local police department if he moves. § 12.63.010(c). A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution. §§ 11.56.835, 11.56.840. The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. § 18.65.087(a). Some of the data, such as fingerprints, driver's license number, anticipated change of address, and whether the offender has had medical treatment *91 afterwards, are kept confidential. §§ 12.63.010(b), 18.65.087(b). The following information is made available to the public: "the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements . . . or cannot be located." § 18.65.087(b). The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet. B Respondents John Doe I and John Doe II were convicted of sexual abuse of a minor, an aggravated sex offense. John Doe I pleaded nolo contendere after a court determination that he had sexually abused his daughter for two years, when she was between the ages of 9 and 11; John Doe II entered a nolo contendere plea to sexual abuse of a 14-year-old child. Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of the Act, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with respondent Jane Doe, wife of John Doe I, brought an action under Rev. Stat. § 1979, 42 U.S.C. § 1983, seeking to declare the Act void as to them under the Ex Post Facto Clause of Article I, § 10, cl. 1, of the Constitution and the Due Process Clause of § 1 of the Fourteenth Amendment. The United States District Court for the District of Alaska granted summary judgment for petitioners. In agreement with the District Court, the Court of Appeals for the Ninth Circuit determined the state legislature had intended the Act to be a nonpunitive, civil *92 regulatory scheme; but, in disagreement with the District Court, it held the effects of the Act were punitive despite the legislature's intent. In consequence, it held the Act violates the Ex Post Facto Clause. Doe I v. Otte, 259 F.3d 979 (2001). We granted certiorari. 534 U.S. 1126 (2002). II This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must "ascertain whether the legislature meant the statute to establish `civil' proceedings." Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "`so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.'" Ibid. (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we "ordinarily defer to the legislature's stated intent," Hendricks, supra, at 361, "`only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty," Hudson v. United States, 522 U.S. 93, 100 (1997) (quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v. Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365 (1984). A Whether a statutory scheme is civil or criminal "is first of all a question of statutory construction." Hendricks, supra, at 361 (internal quotation marks omitted); see also Hudson, supra, at 99. We consider the statute's text and its structure to determine the legislative objective. Flemming v. Nestor, 363 U.S. 603, 617 (1960). A conclusion that the legislature *93 intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it. The courts "must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Hudson, supra, at 99 (internal quotation marks omitted). Here, the Alaska Legislature expressed the objective of the law in the statutory text itself. The legislature found that "sex offenders pose a high risk of reoffending," and identified "protecting the public from sex offenders" as the "primary governmental interest" of the law. 1994 Alaska Sess. Laws ch. 41, § 1. The legislature further determined that "release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety." Ibid. As we observed in Hendricks, where we examined an ex post facto challenge to a postincarceration confinement of sex offenders, an imposition of restrictive measures on sex offenders adjudged to be dangerous is "a legitimate nonpunitive governmental objective and has been historically so regarded." 521 U.S., at 363. In this case, as in Hendricks, "[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil . . . scheme designed to protect the public from harm." Id., at 361. Respondents seek to cast doubt upon the nonpunitive nature of the law's declared objective by pointing out that the Alaska Constitution lists the need for protecting the public as one of the purposes of criminal administration. Brief for Respondents 23 (citing Alaska Const., Art. I, § 12). As the Court stated in Flemming v. Nestor, rejecting an ex post facto challenge to a law terminating benefits to deported aliens, where a legislative restriction "is an incident of the State's power to protect the health and safety of its citizens," it will be considered "as evidencing an intent to exercise that *94 regulatory power, and not a purpose to add to the punishment." 363 U.S., at 616 (citing Hawker v. New York, 170 U.S. 189 (1898)). The Court repeated this principle in 89 Firearms, upholding a statute requiring forfeiture of unlicensed firearms against a double jeopardy challenge. The Court observed that, in enacting the provision, Congress "`was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest.'" 465 U.S., at 364 (quoting Huddleston v. United States, 415 U.S. 814, 824 (1974)). This goal was "plainly more remedial than punitive." 465 U.S., at 364. These precedents instruct us that even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State's pursuit of it in a regulatory scheme does not make the objective punitive. Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent. See Hendricks, supra, at 361; Hudson, supra, at 103; 89 Firearms, supra, at 363. In this case these factors are open to debate. The notification provisions of the Act are codified in the State's "Health, Safety, and Housing Code," § 18, confirming our conclusion that the statute was intended as a nonpunitive regulatory measure. Cf. Hendricks, supra, at 361 (the State's "objective to create a civil proceeding is evidenced by its placement of the Act within the [State's] probate code, instead of the criminal code" (citations omitted)). The Act's registration provisions, however, are codified in the State's criminal procedure code, and so might seem to point in the opposite direction. These factors, though, are not dispositive. The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one. In 89 Firearms, the Court held a forfeiture provision to be a civil sanction even though the authorizing statute was in the criminal code. 465 U.S., at 364-365. *95 The Court rejected the argument that the placement demonstrated Congress' "intention to create an additional criminal sanction," observing that "both criminal and civil sanctions may be labeled `penalties.'" Id., at 364, n. 6. The same rationale applies here. Title 12 of Alaska's Code of Criminal Procedure (where the Act's registration provisions are located) contains many provisions that do not involve criminal punishment, such as civil procedures for disposing of recovered and seized property, Alaska Stat. § 12.36.010 et seq. (2000); laws protecting the confidentiality of victims and witnesses, § 12.61.010 et seq.; laws governing the security and accuracy of criminal justice information, § 12.62.110 et seq.; laws governing civil postconviction actions, § 12.72.010 et seq.; and laws governing actions for writs of habeas corpus, § 12.75.010 et seq., which under Alaska law are "independent civil proceeding[s]," State v. Hannagan, 559 P.2d 1059, 1063 (Alaska 1977). Although some of these provisions relate to criminal administration, they are not in themselves punitive. The partial codification of the Act in the State's criminal procedure code is not sufficient to support a conclusion that the legislative intent was punitive. The procedural mechanisms to implement the Act do not alter our conclusion. After the Act's adoption Alaska amended its Rules of Criminal Procedure concerning the acceptance of pleas and the entering of criminal judgments. The rule on pleas now requires the court to "infor[m] the defendant in writing of the requirements of [the Act] and, if it can be determined by the court, the period of registration required." Alaska Rule Crim. Proc. 11(c)(4) (2002). Similarly, the written judgments for sex offenses and child kidnapings "must set out the requirements of [the Act] and, if it can be determined by the court, whether that conviction will require the offender or kidnapper to register for life or a lesser period." Alaska Stat. § 12.55.148(a) (2000). The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences *96 themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance. The Act requires registration either before the offender's release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See §§ 11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of conviction. Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive. Our conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Alaska Department of Public Safety, §§ 12.63.020(b), 18.65.087(d) — an agency charged with enforcement of both criminal and civil regulatory laws. See, e. g., § 17.30.100 (enforcement of drug laws); § 18.70.010 (fire protection); § 28.05.011 (motor vehicles and road safety); § 44.41.020 (protection of life and property). The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. That leads us to infer that the legislature envisioned the Act's implementation to be civil and administrative. By contemplating "distinctly civil procedures," the legislature "indicate[d] clearly that it intended a civil, not a criminal sanction." Ursery, 518 U. S., at 289 (internal quotation marks omitted; alteration in original). We conclude, as did the District Court and the Court of Appeals, that the intent of the Alaska Legislature was to create a civil, nonpunitive regime. *97 B In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963), as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See id., at 168-169, and nn. 22-28. Because the Mendoza-Martinez factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive," United States v. Ward, 448 U. S., at 249; 89 Firearms, 465 U. S., at 365, n. 7, but are "useful guideposts," Hudson, 522 U. S., at 99. The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose. A historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such. The Court of Appeals observed that the sex offender registration and notification statutes "are of fairly recent origin," 259 F.3d, at 989, which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents argue, however, that the Act — and, in particular, its notification provisions — resemble shaming punishments of the colonial period. Brief for Respondents 33-34 (citing A. Earle, Curious Punishments of Bygone Days 1-2 (1896)). Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required "to stand in public with signs cataloguing their offenses." Hirsch, From Pillory to Penitentiary: The Rise of Criminal *98 Incarceration in Early Massachusetts, 80 Mich. L. Rev. 1179, 1226 (1982); see also L. Friedman, Crime and Punishment in American History 38 (1993). At times the labeling would be permanent: A murderer might be branded with an "M," and a thief with a "T." R. Semmes, Crime and Punishment in Early Maryland 35 (1938); see also Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1913 (1991). The aim was to make these offenders suffer "permanent stigmas, which in effect cast the person out of the community." Ibid.; see also Friedman, supra, at 40; Hirsch, supra, at 1228. The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one. T. Blomberg & K. Lucken, American Penology: A History of Control 30-31 (2000). Respondents contend that Alaska's compulsory registration and notification resemble these historical punishments, for they publicize the crime, associate it with his name, and, with the most serious offenders, do so for life. Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. See Earle, supra, at 20, 35-36, 51-52; Massaro, supra, at 1912-1924; Semmes, supra, at 39-40; Blomberg & Lucken, supra, at 30-31. By contrast, the stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, *99 our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme. The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. The State's Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety's Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry. We next consider whether the Act subjects respondents to an "affirmative disability or restraint." Mendoza-Martinez, supra, at 168. Here, we inquire how the effects of the *100 Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive. The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. The Act's obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive. See ibid. (forbidding further participation in the banking industry); De Veau v. Braisted, 363 U.S. 144 (1960) (forbidding work as a union official); Hawker v. New York, 170 U.S. 189 (1898) (revocation of a medical license). The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences. The Court of Appeals sought to distinguish Hawker and cases which have followed it on the grounds that the disability at issue there was specific and "narrow," confined to particular professions, whereas "the procedures employed under the Alaska statute are likely to make [respondents] completely unemployable" because "employers will not want to risk loss of business when the public learns that they have hired sex offenders." 259 F.3d, at 988. This is conjecture. Landlords and employers could conduct background checks on the criminal records of prospective employees or tenants even with the Act not in force. The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords. The Court of Appeals identified only one incident from the 7-year history of Alaska's law where a sex offender suffered community hostility and damage to his business after the information he submitted to the registry became public. Id., at 987-988. This could have occurred in any event, because the information about the individual's conviction was already in the public domain. *101 Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant. The Court of Appeals reasoned that the requirement of periodic updates imposed an affirmative disability. In reaching this conclusion, the Court of Appeals was under a misapprehension, albeit one created by the State itself during the argument below, that the offender had to update the registry in person. Id., at 984, n. 4. The State's representation was erroneous. The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in-person appearance requirement has been imposed on any sex offender subject to the Act. Tr. of Oral Arg. 26-28. The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint imposed. 259 F.3d, at 987. This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally Johnson v. United States, 529 U.S. 694 (2000); Griffin v. Wisconsin, 483 U.S. 868 (1987). By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender *102 who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause. The State concedes that the statute might deter future crimes. Respondents seize on this proposition to argue that the law is punitive, because deterrence is one purpose of punishment. Brief for Respondents 37. This proves too much. Any number of governmental programs might deter crime without imposing punishment. "To hold that the mere presence of a deterrent purpose renders such sanctions `criminal' ... would severely undermine the Government's ability to engage in effective regulation." Hudson, supra, at 105; see also Ursery, 518 U. S., at 292; 89 Firearms, 465 U. S., at 364. The Court of Appeals was incorrect to conclude that the Act's registration obligations were retributive because "the length of the reporting requirement appears to be measured by the extent of the wrongdoing, not by the extent of the risk posed." 259 F.3d, at 990. The Act, it is true, differentiates between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense. Alaska Stat. § 12.63.020(a)(1) (2000). The broad categories, however, and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective. The Act's rational connection to a nonpunitive purpose is a "[m]ost significant" factor in our determination that the statute's effects are not punitive. Ursery, supra, at 290. As the Court of Appeals acknowledged, the Act has a legitimate *103 nonpunitive purpose of "public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y]." 259 F.3d, at 991. Respondents concede, in turn, that "this alternative purpose is valid, and rational." Brief for Respondents 38. They contend, however, that the Act lacks the necessary regulatory connection because it is not "narrowly drawn to accomplish the stated purpose." Ibid. A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act's nonpunitive purpose is a "sham or mere pretext." Hendricks, 521 U. S., at 371 (KENNEDY, J., concurring). In concluding the Act was excessive in relation to its regulatory purpose, the Court of Appeals relied in large part on two propositions: first, that the statute applies to all convicted sex offenders without regard to their future dangerousness; and, second, that it places no limits on the number of persons who have access to the information. 259 F.3d, at 991-992. Neither argument is persuasive. Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high." McKune v. Lile, 536 U.S. 24, 34 (2002); see also id., at 33 ("When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault" (citing U. S. Dept. of Justice, Bureau of Justice Statistics, Sex Offenses and Offenders 27 (1997); U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 (1997))). The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. *104 We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. See De Veau, 363 U. S., at 160; Hawker, 170 U. S., at 197. As stated in Hawker: "Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application ...." Ibid. The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause. Our decision in Hendricks, on which respondents rely, Brief for Respondents 39, is not to the contrary. The State's objective in Hendricks was involuntary (and potentially indefinite) confinement of "particularly dangerous individuals." 521 U.S., at 357-358, 364. The magnitude of the restraint made individual assessment appropriate. The Act, by contrast, imposes the more minor condition of registration. In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants' convictions without violating the prohibitions of the Ex Post Facto Clause. The duration of the reporting requirements is not excessive. Empirical research on child molesters, for instance, has shown that, "[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release," but may occur "as late as 20 years following release." National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U. S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 (1997). The Court of Appeals' reliance on the wide dissemination of the information is also unavailing. The Ninth Circuit *105 highlighted that the information was available "world-wide" and "[b]roadcas[t]" in an indiscriminate manner. 259 F.3d, at 992. As we have explained, however, the notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information "to commit a criminal act against another person is subject to criminal prosecution." http://www.dps.state.ak.us/nSorcr/asp/ (as visited Jan. 17, 2003) (available in the Clerk of Court's case file). Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. See D. Schram & C. Milloy, Community Notification: A Study of Offender Characteristics and Recidivism 13 (1995) (38% of recidivist sex offenses in the State of Washington took place in jurisdictions other than where the previous offense was committed). The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard. The two remaining Mendoza-Martinez factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime — are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation. Our examination of the Act's effects leads to the determination that respondents cannot show, much less by the clearest proof, that the effects of the law negate Alaska's intention to establish a civil regulatory scheme. The Act is nonpunitive, *106 and its retroactive application does not violate the Ex Post Facto Clause. 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.

The Alaska Sex Offender Registration Act requires convicted sex offenders to register with law enforcement authorities, and much of the information is made public. We must decide whether the registration requirement is a retroactive punishment prohibited by the Ex Post Facto Clause. I A The State of Alaska enacted the Alaska Sex Offender Registration Act (Act) on May 12, 1994. 1994 Alaska Sess. Laws ch. 41. Like its counterparts in other States, the Act is termed a "Megan's Law." Megan Kanka was a 7-year-old New Jersey girl who was sexually assaulted and murdered in 1994 by a neighbor who, unknown to the victim's family, had prior convictions for sex offenses against children. The crime gave impetus to laws for mandatory registration of sex offenders and corresponding community notification. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, as amended, 42 U.S. C. 14071, which conditions certain federal law enforcement funding on the States' adoption of sex offender registration laws and sets *90 minimum standards for state programs. By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of Megan's Law. The Alaska law, which is our concern in this case, contains two components: a registration requirement and a notification system. Both are retroactive. 1994 Alaska Sess. Laws ch. 41, 12(a). The Act requires any "sex offender or child kidnapper who is physically present in the state" to register, either with the Department of Corrections (if the individual is incarcerated) or with the local law enforcement authorities (if the individual is at liberty). Alaska Stat. 12.63.010(a), (b) Prompt registration is mandated. If still in prison, a covered sex offender must register within 30 days before release; otherwise he must do so within a working day of his conviction or of entering the State. 12.63.010(a). The sex offender must provide his name, aliases, identifying features, address, place of employment, date of birth, conviction information, driver's license number, information about vehicles to which he has access, and postconviction treatment history. 12.63.010(b)(1). He must permit the authorities to photograph and fingerprint him. 12.63.010(b)(2). If the offender was convicted of a single, nonaggravated sex crime, he must provide annual verification of the submitted information for 15 years. 12.63.010(d)(1), 12.63.020(a)(2). If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. 12.63.010(d)(2), 12.63.020(a)(1). The offender must notify his local police department if he moves. 12.63.010(c). A sex offender who knowingly fails to comply with the Act is subject to criminal prosecution. 11.56.835, 11.56.840. The information is forwarded to the Alaska Department of Public Safety, which maintains a central registry of sex offenders. 18.65.087(a). Some of the data, such as fingerprints, driver's license number, anticipated change of address, and whether the offender has had medical treatment *91 afterwards, are kept confidential. 12.63.010(b), 18.65.087(b). The following information is made available to the public: "the sex offender's or child kidnapper's name, aliases, address, photograph, physical description, description[,] license [and] identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a statement as to whether the offender or kidnapper is in compliance with [the update] requirements or cannot be located." 18.65.087(b). The Act does not specify the means by which the registry information must be made public. Alaska has chosen to make most of the nonconfidential information available on the Internet. B Respondents John Doe I and John Doe II were convicted of sexual abuse of a minor, an aggravated sex offense. John Doe I pleaded nolo contendere after a court determination that he had sexually abused his daughter for two years, when she was between the ages of 9 and 11; John Doe II entered a nolo contendere plea to sexual abuse of a 14-year-old child. Both were released from prison in 1990 and completed rehabilitative programs for sex offenders. Although convicted before the passage of the Act, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with respondent Jane Doe, wife of John Doe I, brought an action under Rev. Stat. 1979, 42 U.S.C. 1983, seeking to declare the Act void as to them under the Ex Post Facto Clause of Article I, 10, cl. 1, of the Constitution and the Due Process Clause of 1 of the Fourteenth Amendment. The United States District Court for the District of Alaska granted summary judgment for petitioners. In agreement with the District Court, the Court of Appeals for the Ninth Circuit determined the state legislature had intended the Act to be a nonpunitive, civil *92 regulatory scheme; but, in disagreement with the District Court, it held the effects of the Act were punitive despite the legislature's intent. In consequence, it held the Act violates the Ex Post Facto Clause. Doe We granted certiorari. II This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must "ascertain whether the legislature meant the statute to establish `civil' proceedings." If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "`so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.'" ). Because we "ordinarily defer to the legislature's stated intent," at "`only the clearest proof' will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty," (quoting ); see also at ; United ; United A Whether a statutory scheme is civil or criminal "is first of all a question of statutory construction." at ; see also We consider the statute's text and its structure to determine the legislative objective. A conclusion that the legislature *93 intended to punish would satisfy an ex post facto challenge without further inquiry into its effects, so considerable deference must be accorded to the intent as the legislature has stated it. The courts "must first ask whether the legislature, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Here, the Alaska Legislature expressed the objective of the law in the statutory text itself. The legislature found that "sex offenders pose a high risk of reoffending," and identified "protecting the public from sex offenders" as the "primary governmental interest" of the law. 1994 Alaska Sess. Laws ch. 41, 1. The legislature further determined that "release of certain information about sex offenders to public agencies and the general public will assist in protecting the public safety." As we observed in where we examined an ex post facto challenge to a postincarceration confinement of sex offenders, an imposition of restrictive measures on sex offenders adjudged to be dangerous is "a legitimate nonpunitive governmental objective and has been historically so regarded." In this case, as in "[n]othing on the face of the statute suggests that the legislature sought to create anything other than a civil scheme designed to protect the public from harm." at Respondents seek to cast doubt upon the nonpunitive nature of the law's declared objective by pointing out that the Alaska Constitution lists the need for protecting the public as one of the purposes of criminal administration. Brief for Respondents 23 (citing Alaska Const., Art. I, 12). As the Court stated in rejecting an ex post facto challenge to a law terminating benefits to deported aliens, where a legislative restriction "is an incident of the State's power to protect the health and safety of its citizens," it will be considered "as evidencing an intent to exercise that *94 regulatory power, and not a purpose to add to the punishment." ). The Court repeated this principle in 89 upholding a statute requiring forfeiture of unlicensed firearms against a double jeopardy challenge. The Court observed that, in enacting the provision, Congress "`was concerned with the widespread traffic in firearms and with their general availability to those whose possession thereof was contrary to the public interest.'" ). This goal was "plainly more remedial than punitive." These precedents instruct us that even if the objective of the Act is consistent with the purposes of the Alaska criminal justice system, the State's pursuit of it in a regulatory scheme does not make the objective punitive. Other formal attributes of a legislative enactment, such as the manner of its codification or the enforcement procedures it establishes, are probative of the legislature's intent. See at ; ; 89 In this case these factors are open to debate. The notification provisions of the Act are codified in the State's "Health, Safety, and Housing Code," 18, confirming our conclusion that the statute was intended as a nonpunitive regulatory measure. Cf. at The Act's registration provisions, however, are codified in the State's criminal procedure code, and so might seem to point in the opposite direction. These factors, though, are not dispositive. The location and labels of a statutory provision do not by themselves transform a civil remedy into a criminal one. In 89 the Court held a forfeiture provision to be a civil sanction even though the authorizing statute was in the criminal -. *95 The Court rejected the argument that the placement demonstrated Congress' "intention to create an additional criminal sanction," observing that "both criminal and civil sanctions may be labeled `penalties.'" The same rationale applies here. Title 12 of Alaska's Code of Criminal Procedure (where the Act's registration provisions are located) contains many provisions that do not involve criminal punishment, such as civil procedures for disposing of recovered and seized property, Alaska Stat. 12.36.010 et seq. ; laws protecting the confidentiality of victims and witnesses, 12.61.010 et seq.; laws governing the security and accuracy of criminal justice information, 12.62.110 et seq.; laws governing civil postconviction actions, 12.72.010 et seq.; and laws governing actions for writs of habeas corpus, 12.75.010 et seq., which under Alaska law are "independent civil proceeding[s]," Although some of these provisions relate to criminal administration, they are not in themselves punitive. The partial codification of the Act in the State's criminal procedure code is not sufficient to support a conclusion that the legislative intent was punitive. The procedural mechanisms to implement the Act do not alter our conclusion. After the Act's adoption Alaska amended its Rules of Criminal Procedure concerning the acceptance of pleas and the entering of criminal judgments. The rule on pleas now requires the court to "infor[m] the defendant in writing of the requirements of [the Act] and, if it can be determined by the court, the period of registration required." Alaska Rule Crim. Proc. 11(c)(4) Similarly, the written judgments for sex offenses and child kidnapings "must set out the requirements of [the Act] and, if it can be determined by the court, whether that conviction will require the offender or kidnapper to register for life or a lesser period." Alaska Stat. 12.55.148(a) The policy to alert convicted offenders to the civil consequences of their criminal conduct does not render the consequences *96 themselves punitive. When a State sets up a regulatory scheme, it is logical to provide those persons subject to it with clear and unambiguous notice of the requirements and the penalties for noncompliance. The Act requires registration either before the offender's release from confinement or within a day of his conviction (if the offender is not imprisoned). Timely and adequate notice serves to apprise individuals of their responsibilities and to ensure compliance with the regulatory scheme. Notice is important, for the scheme is enforced by criminal penalties. See 11.56.835, 11.56.840. Although other methods of notification may be available, it is effective to make it part of the plea colloquy or the judgment of conviction. Invoking the criminal process in aid of a statutory regime does not render the statutory scheme itself punitive. Our conclusion is strengthened by the fact that, aside from the duty to register, the statute itself mandates no procedures. Instead, it vests the authority to promulgate implementing regulations with the Alaska Department of Public Safety, 12.63.020(b), 18.65.087(d) — an agency charged with enforcement of both criminal and civil regulatory laws. See, e. g., 17.30. (enforcement of drug laws); 18.70.010 (fire protection); 28.05.011 (motor vehicles and road safety); 44.41.020 (protection of life and property). The Act itself does not require the procedures adopted to contain any safeguards associated with the criminal process. That leads us to infer that the legislature envisioned the Act's implementation to be civil and administrative. By contemplating "distinctly civil procedures," the legislature "indicate[d] clearly that it intended a civil, not a criminal sanction." We conclude, as did the District Court and the Court of Appeals, that the intent of the Alaska Legislature was to create a civil, nonpunitive regime. *97 B In analyzing the effects of the Act we refer to the seven factors noted in as a useful framework. These factors, which migrated into our ex post facto case law from double jeopardy jurisprudence, have their earlier origins in cases under the Sixth and Eighth Amendments, as well as the Bill of Attainder and the Ex Post Facto Clauses. See at and nn. 22-28. Because the factors are designed to apply in various constitutional contexts, we have said they are "neither exhaustive nor dispositive," United 448 U. S., ; 89 465 U. S., at n. 7, but are "useful guideposts," 522 U. S., The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose. A historical survey can be useful because a State that decides to punish an individual is likely to select a means deemed punitive in our tradition, so that the public will recognize it as such. The Court of Appeals observed that the sex offender registration and notification statutes "are of fairly recent origin," which suggests that the statute was not meant as a punitive measure, or, at least, that it did not involve a traditional means of punishing. Respondents argue, however, that the Act — and, in particular, its notification provisions — resemble shaming punishments of the colonial period. Brief for Respondents 33- (citing A. Curious Punishments of Bygone Days 1-2 (1896)). Some colonial punishments indeed were meant to inflict public disgrace. Humiliated offenders were required "to stand in public with signs cataloguing their offenses." From Pillory to Penitentiary: The Rise of Criminal *98 Incarceration in Early Massachusetts, ; see also L. Crime and Punishment in American History 38 (1993). At times the labeling would be permanent: A murderer might be branded with an "M," and a thief with a "T." R. Crime and Punishment in Early Maryland 35 (1938); see also Shame, Culture, and American Criminal Law, The aim was to make these offenders suffer "permanent stigmas, which in effect cast the person out of the community." ; see also ; The most serious offenders were banished, after which they could neither return to their original community nor, reputation tarnished, be admitted easily into a new one. T. Blomberg & K. American Penology: A History of Control 30-31 Respondents contend that Alaska's compulsory registration and notification resemble these historical punishments, for they publicize the crime, associate it with his name, and, with the most serious offenders, do so for life. Any initial resemblance to early punishments is, however, misleading. Punishments such as whipping, pillory, and branding inflicted physical pain and staged a direct confrontation between the offender and the public. Even punishments that lacked the corporal component, such as public shaming, humiliation, and banishment, involved more than the dissemination of information. They either held the person up before his fellow citizens for face-to-face shaming or expelled him from the community. See ; ; ; Blomberg & By contrast, the stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, *99 our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme. The fact that Alaska posts the information on the Internet does not alter our conclusion. It must be acknowledged that notice of a criminal conviction subjects the offender to public shame, the humiliation increasing in proportion to the extent of the publicity. And the geographic reach of the Internet is greater than anything which could have been designed in colonial times. These facts do not render Internet notification punitive. The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation. The State's Web site does not provide the public with means to shame the offender by, say, posting comments underneath his record. An individual seeking the information must take the initial step of going to the Department of Public Safety's Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry. We next consider whether the Act subjects respondents to an "affirmative disability or restraint." Here, we inquire how the effects of the * Act are felt by those subject to it. If the disability or restraint is minor and indirect, its effects are unlikely to be punitive. The Act imposes no physical restraint, and so does not resemble the punishment of imprisonment, which is the paradigmatic affirmative disability or restraint. The Act's obligations are less harsh than the sanctions of occupational debarment, which we have held to be nonpunitive. See ; De ; The Act does not restrain activities sex offenders may pursue but leaves them free to change jobs or residences. The Court of Appeals sought to distinguish and cases which have followed it on the grounds that the disability at issue there was specific and "narrow," confined to particular professions, whereas "the procedures employed under the Alaska statute are likely to make [respondents] completely unemployable" because "employers will not want to risk loss of business when the public learns that they have hired sex offenders." This is conjecture. Landlords and employers could conduct background checks on the criminal records of prospective employees or tenants even with the Act not in force. The record in this case contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords. The Court of Appeals identified only one incident from the 7-year history of Alaska's law where a sex offender suffered community hostility and damage to his business after the information he submitted to the registry became public. This could have occurred in any event, because the information about the individual's conviction was already in the public domain. *101 Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant. The Court of Appeals reasoned that the requirement of periodic updates imposed an affirmative disability. In reaching this conclusion, the Court of Appeals was under a misapprehension, albeit one created by the State itself during the argument below, that the offender had to update the registry in person. The State's representation was erroneous. The Alaska statute, on its face, does not require these updates to be made in person. And, as respondents conceded at the oral argument before us, the record contains no indication that an in-person appearance requirement has been imposed on any sex offender subject to the Act. Tr. of Oral Arg. 26-28. The Court of Appeals held that the registration system is parallel to probation or supervised release in terms of the restraint This argument has some force, but, after due consideration, we reject it. Probation and supervised release entail a series of mandatory conditions and allow the supervising officer to seek the revocation of probation or release in case of infraction. See generally ; By contrast, offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision. Although registrants must inform the authorities after they change their facial features (such as growing a beard), borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so. A sex offender *102 who fails to comply with the reporting requirement may be subjected to a criminal prosecution for that failure, but any prosecution is a proceeding separate from the individual's original offense. Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion. It suffices to say the registration requirements make a valid regulatory program effective and do not impose punitive restraints in violation of the Ex Post Facto Clause. The State concedes that the statute might deter future crimes. Respondents seize on this proposition to argue that the law is punitive, because deterrence is one purpose of punishment. Brief for Respondents 37. This proves too much. Any number of governmental programs might deter crime without imposing punishment. "To hold that the mere presence of a deterrent purpose renders such sanctions `criminal' would severely undermine the Government's ability to engage in effective regulation." ; see also ; 89 The Court of Appeals was incorrect to conclude that the Act's registration obligations were retributive because "the length of the reporting requirement appears to be measured by the extent of the wrongdoing, not by the extent of the risk posed." 259 F.3d, 0. The Act, it is true, differentiates between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense. Alaska Stat. 12.63.020(a)(1) The broad categories, however, and the corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective. The Act's rational connection to a nonpunitive purpose is a "[m]ost significant" factor in our determination that the statute's effects are not punitive. at As the Court of Appeals acknowledged, the Act has a legitimate *103 nonpunitive purpose of "public safety, which is advanced by alerting the public to the risk of sex offenders in their communit[y]." 259 F.3d, 1. Respondents concede, in turn, that "this alternative purpose is valid, and rational." Brief for Respondents 38. They contend, however, that the Act lacks the necessary regulatory connection because it is not "narrowly drawn to accomplish the stated purpose." A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance. The imprecision respondents rely upon does not suggest that the Act's nonpunitive purpose is a "sham or mere pretext." In concluding the Act was excessive in relation to its regulatory purpose, the Court of Appeals relied in large part on two propositions: first, that the statute applies to all convicted sex offenders without regard to their future dangerousness; and, second, that it places no limits on the number of persons who have access to the information. 259 F.3d, 1-992. Neither argument is persuasive. Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature's findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is "frightening and high." ; see also ; U. S. Dept. of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1983, p. 6 )). The Ex Post Facto Clause does not preclude a State from making reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences. *104 We have upheld against ex post facto challenges laws imposing regulatory burdens on individuals convicted of crimes without any corresponding risk assessment. See De ; As stated in : "Doubtless, one who has violated the criminal law may thereafter reform and become in fact possessed of a good moral character. But the legislature has power in cases of this kind to make a rule of universal application" The State's determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause. Our decision in on which respondents rely, Brief for Respondents 39, is not to the contrary. The State's objective in was involuntary (and potentially indefinite) confinement of "particularly dangerous individuals." -358, 364. The magnitude of the restraint made individual assessment appropriate. The Act, by contrast, imposes the more minor condition of registration. In the context of the regulatory scheme the State can dispense with individual predictions of future dangerousness and allow the public to assess the risk on the basis of accurate, nonprivate information about the registrants' convictions without violating the prohibitions of the Ex Post Facto Clause. The duration of the reporting requirements is not excessive. Empirical research on child molesters, for instance, has shown that, "[c]ontrary to conventional wisdom, most reoffenses do not occur within the first several years after release," but may occur "as late as 20 years following release." National Institute of Justice, R. Prentky, R. Knight, & A. Lee, U. S. Dept. of Justice, Child Sexual Molestation: Research Issues 14 The Court of Appeals' reliance on the wide dissemination of the information is also unavailing. The Ninth Circuit *105 highlighted that the information was available "world-wide" and "[b]roadcas[t]" in an indiscriminate 259 F.3d, 2. As we have explained, however, the notification system is a passive one: An individual must seek access to the information. The Web site warns that the use of displayed information "to commit a criminal act against another person is subject to criminal prosecution." http://www.dps.state.ak.us/nSorcr/asp/ (as visited Jan. 17, 2003) (available in the Clerk of Court's case file). Given the general mobility of our population, for Alaska to make its registry system available and easily accessible throughout the State was not so excessive a regulatory requirement as to become a punishment. See D. Schram & C. Milloy, Community Notification: A Study of Offender Characteristics and Recidivism 13 (1995) (38% of recidivist sex offenses in the State of Washington took place in jurisdictions other than where the previous offense was committed). The excessiveness inquiry of our ex post facto jurisprudence is not an exercise in determining whether the legislature has made the best choice possible to address the problem it seeks to remedy. The question is whether the regulatory means chosen are reasonable in light of the nonpunitive objective. The Act meets this standard. The two remaining factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime — are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation. Our examination of the Act's effects leads to the determination that respondents cannot show, much less by the clearest proof, that the effects of the law negate Alaska's intention to establish a civil regulatory scheme. The Act is nonpunitive, *106 and its retroactive application does not violate the Ex Post Facto Clause. 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 Thomas

concurring

Smith v. Doe

2003-03-05

https://www.courtlistener.com/opinion/127899/smith-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127899/

2002-030

I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Seling v. Young, 531 U.S. 250, 273 (2001) (THOMAS, J., concurring in judgment). Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See id., at 273-274 ("[T]o the extent that the conditions result from the fact that the statute is not being applied according to its terms, the conditions are not the effect of the statute, but rather the effect of its improper implementation"). As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." Hudson v. United States, 522 U.S. 93, 100 (1997) (internal quotation marks omitted). In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender ... that is contained in the central registry ... is confidential and not subject to public disclosure except as to the sex offender's ... name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender ... is in compliance with requirements of AS 12.63 or cannot be located." Alaska Stat. § 18.65.087(b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy-Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United States v. Ward, 448 U.S. 242, 248-249 (1980); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). We have said that "`only the clearest proof'" that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson v. United States, 522 U.S. 93, 113-114 (1997) (SOUTER, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way. The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See Hudson, supra, at 103; Kansas v. Hendricks, 521 U.S. 346, 361 (1997); Allen v. Illinois, 478 U.S. 364, 368 (1986). The placement of the Act in the State's code, another important indicator, see Hendricks, supra, at 361, also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see Alaska Stat. § 18.65.087 (2000), the section requiring registration occurs in the title governing criminal procedure, see § 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. § 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see Hudson, supra, at 103, offenders are obliged, at least initially, to register with state and local police, see §§ 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see § 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the Kennedy-Ward analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, § 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United States v. Salerno, 481 U.S. 739, 747 (1987), and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See Weaver v. Graham, 450 U.S. 24, 29 (1981) (Ex Post Facto Clause was meant to prevent "arbitrary and potentially vindictive legislation"). The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See Kennedy, supra, at 169. That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, 89 Mich. L. Rev. 1880, 1913 (1991). While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.[*] *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the "`clearest proof'" of penal substance in this case, see Hudson, 522 U. S., at 113-114 (SOUTER, J., concurring in judgment), and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. JUSTICE STEVENS, dissenting in No. 01-729 and concurring in the judgment in No. 01-1231.[*] These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-729 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Meachum v. Fano, 427 U.S. 215 (1976). Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information — including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment — at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 99 (opinion in No. 01-729), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U.S. 433 (1971). It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De Veau v. Braisted, 363 U.S. 144 (1960) (upholding prohibition of convicted felons from working for waterfront unions); Hawker v. New York, 170 U.S. 189 (1898) (upholding prohibition of doctors who had been convicted of a felony from practicing medicine). Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 191-192 (1967). And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N. J. Stat. Ann. § 45:1-21 (West Supp. 2002). *113 Likewise, in Kansas v. Hendricks, 521 U.S. 346 (1997), the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a "`mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Id., at 352. Nor was the conviction even a necessary predicate for the commitment. See ibid. (Kansas' civil commitment procedures also applied to individuals charged with a sexually violent offense but found incompetent to stand for trial, or found not guilty by reason of insanity or by reason of mental disease or defect). While one might disagree in other respects with Hendricks, it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-729). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment — retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-729.

I join the Court's opinion upholding the Alaska Sex Offender Registration Act (ASORA) against ex post facto challenge. I write separately, however, to reiterate that "there is no place for [an implementation-based] challenge" in our ex post facto jurisprudence. Instead, the determination whether a scheme is criminal or civil must be limited to the analysis of the obligations actually created by statute. See at -274 As we have stated, the categorization of a proceeding as civil or criminal is accomplished by examining "the statute on its face." In this case, ASORA does not specify a means of making registry information available to the public. It states only that "[i]nformation about a sex offender that is contained in the central registry is confidential and not subject to public disclosure except as to the sex offender's name, aliases, address, photograph, physical description, description of motor vehicles, license numbers of motor vehicles, and vehicle identification numbers of motor vehicles, place of employment, date of birth, crime for which convicted, date of conviction, place and court of conviction, length and conditions of sentence, and a *107 statement as to whether the offender is in compliance with requirements of AS 12.63 or cannot be located." (b) (2000). By considering whether Internet dissemination renders ASORA punitive, the Court has strayed from the statute. With this qualification, I concur. JUSTICE SOUTER, concurring in the judgment. I agree with the Court that Alaska's Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment. As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called - test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature's preferred classification to the law's substance, focusing on its purpose and effects. See United ; We have said that "`only the clearest proof'" that a law is punitive based on substantial factors will be able to overcome the legislative categorization. ). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way. The Act does not expressly designate the requirements imposed as "civil," a fact that itself makes this different from *108 our past cases, which have relied heavily on the legislature's stated label in finding a civil intent. See ; ; The placement of the Act in the State's code, another important indicator, see at also leaves matters in the air, for although the section establishing the registry is among the code's health and safety provisions, which are civil, see (2000), the section requiring registration occurs in the title governing criminal procedure, see 12.63.010. What is more, the legislature made written notification of the requirement a necessary condition of any guilty plea, see Alaska Rule Crim. Proc. 11(c)(4) (2002), and, perhaps most significant, it mandated a statement of the requirement as an element of the actual judgment of conviction for covered sex offenses, see Alaska Stat. 12.55.148 (2000); Alaska Rule Crim. Proc. 32(c) (2002). Finally, looking to enforcement, see offenders are obliged, at least initially, to register with state and local police, see 12.63.010(b), (c), although the actual information so obtained is kept by the State's Department of Public Safety, a regulatory agency, see 18.65.087(a). These formal facts do not force a criminal characterization, but they stand in the way of asserting that the statute's intended character is clearly civil. The substantial indicators relevant at step two of the - analysis likewise point in different directions. To start with purpose, the Act's legislative history shows it was designed to prevent repeat sex offenses and to aid the investigation of reported offenses. See 1994 Alaska Sess. Laws ch. 41, 1; Brief for Petitioners 26, n. 13. Ensuring public safety is, of course, a fundamental regulatory goal, see, e. g., United and this objective should be given serious weight in the analyses. But, at the same time, it would be naive to look no *109 further, given pervasive attitudes toward sex offenders, see infra this page and 110, n. See The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones. See That argument can claim support, too, from the severity of the burdens imposed. Widespread dissemination of offenders' names, photographs, addresses, and criminal history serves not only to inform the public but also to humiliate and ostracize the convicts. It thus bears some resemblance to shaming punishments that were used earlier in our history to disable offenders from living normally in the community. See, e. g., Massaro, Shame, Culture, and American Criminal Law, While the Court accepts the State's explanation that the Act simply makes public information available in a new way, ante, at 99, the scheme does much more. Its point, after all, is to send a message that probably would not otherwise be heard, by selecting some conviction information out of its corpus of penal records and broadcasting it with a warning. Selection makes a statement, one that affects common reputation and sometimes carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.[*] *110 To me, the indications of punitive character stated above and the civil indications weighed heavily by the Court are in rough equipoise. Certainly the formal evidence of legislative intent does not justify requiring the "`clearest proof'" of penal substance in this case, see 522 U. S., at and the substantial evidence does not affirmatively show with any clarity that the Act is valid. What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment. JUSTICE STEVENS, dissenting in No. 01-7 and concurring in the judgment in No. 01-1231.[*] These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01-7 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01-1231 *111 it is whether Connecticut's similar law violates the Due Process Clause. The Court's opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants' freedom. The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information — including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment — at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant's face appears on a webpage under the label "Registered Sex Offender." His physical description, street address, employer address, and conviction information are also displayed on this page. The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the "[w]idespread public access," ante, at 99 (opinion in No. 01-7), *112 to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender's liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction. To be sure, there are cases in which we have held that it was not punishment and thus not a violation of the Ex Post Facto Clause to deny future privileges to individuals who were convicted of crimes. See, e. g., De ; Those cases are distinguishable because in each the prior conviction was a sufficient condition for the imposition of the burden, but it was not a necessary one. That is, one may be barred from participation in a union because he has not paid fines imposed on him. See And a doctor may not be permitted to practice medicine because she is no longer competent to do so. See, e.g., N. J. Stat. Ann. 45:1-21 (West Supp. 2002). *113 Likewise, in the Court held that a law that permitted the civil commitment of persons who had committed or had been charged with a sexually violent offense was not an ex post facto law. But the fact that someone had been convicted was not sufficient to authorize civil commitment under Kansas law because Kansas required another proceeding to determine if such a person suffered from a "`mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Nor was the conviction even a necessary predicate for the commitment. See While one might disagree in other respects with it is clear that a conviction standing alone did not make anyone eligible for the burden imposed by that statute. No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. It is therefore clear to me that the Constitution prohibits the addition of these sanctions to the punishment of persons who were tried and convicted before the legislation was enacted. As the Court recognizes, "recidivism is the statutory concern" that provides the supposed justification for the imposition of such retroactive punishment. Ante, at 105 (opinion in No. 01-7). That is the principal rationale that underlies the "three strikes" statute that the Court has upheld *114 in Ewing v. California, ante, p. 11. Reliance on that rationale here highlights the conclusion that the retroactive application of these statutes constitutes a flagrant violation of the protections afforded by the Double Jeopardy and Ex Post Facto Clauses of the Constitution. I think it equally clear, however, that the State may impose registration duties and may publish registration information as a part of its punishment of this category of defendants. Looking to the future, these aspects of their punishment are adequately justified by two of the traditional aims of punishment — retribution and deterrence. Moreover, as a matter of procedural fairness, Alaska requires its judges to include notice of the registration requirements in judgments imposing sentences on convicted sex offenders and in the colloquy preceding the acceptance of a plea of guilty to such an offense. See Alaska Rules Crim. Proc. 11(c)(4) and 32(c) (2002). Thus, I agree with the Court that these statutes are constitutional as applied to postenactment offenses. Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court's disposition of the Connecticut case, No. 01-1231, and I respectfully dissent from its disposition of the Alaska case, No. 01-7.

Justice Ginsburg

dissenting

Smith v. Doe

2003-03-05

https://www.courtlistener.com/opinion/127899/smith-v-doe/

https://www.courtlistener.com/api/rest/v3/clusters/127899/

2002-030

As JUSTICE SOUTER carefully explains, it is unclear whether the Alaska Legislature conceived of the State's Sex Offender Registration Act as a regulatory measure or as a *115 penal law. See ante, at 107-109 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand "the clearest proof" that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), I would neutrally evaluate the Act's purpose and effects. See id., at 168-169 (listing seven factors courts should consider "[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute"); cf. Hudson v. United States, 522 U.S. 93, 115 (1997) (BREYER, J., concurring in judgment) ("[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.").[1] Measured by the Mendoza-Martinez factors, I would hold Alaska's Act punitive in effect. Beyond doubt, the Act involves an "affirmative disability or restraint." 372 U.S., at 168. As JUSTICE STEVENS and JUSTICE SOUTER spell out, Alaska's Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. See ante, at 109, and n. (SOUTER, J., concurring in judgment); ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). Furthermore, the Act's requirements resemble historically common forms of punishment. See Mendoza-Martinez, 372 U. S., at 168. Its registration and reporting provisions are comparable to conditions of supervised release or parole; its *116 public notification regimen, which permits placement of the registrant's face on a webpage under the label "Registered Sex Offender," calls to mind shaming punishments once used to mark an offender as someone to be shunned. See ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231); ante, at 109 (SOUTER, J., concurring in judgment). Telling too, as JUSTICE SOUTER observes, past crime alone, not current dangerousness, is the "touchstone" triggering the Act's obligations. Ibid. (opinion concurring in judgment); see ante, at 112-113 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). This touchstone adds to the impression that the Act retributively targets past guilt, i.e., that it "revisit[s] past crimes [more than it] prevent[s] future ones." Ante, at 109 (SOUTER, J., concurring in judgment); see Mendoza-Martinez, 372 U. S., at 168. Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e. g., Flemming v. Nestor, 363 U.S. 603 (1960) (termination of accrued disability benefits payable to deported resident aliens); Kansas v. Hendricks, 521 U.S. 346 (1997) (civil confinement of mentally ill sex offenders). The Court has also deemed some laws nonpunitive despite "punitive aspects." See United States v. Ursery, 518 U.S. 267, 290 (1996). What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose. See Mendoza-Martinez, 372 U. S., at 169. As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 102-103 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not *117 to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 90. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation.[2] However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation. John Doe I, for example, pleaded nolo contendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed a treatment program, and gained early release on supervised probation in part because of his compliance with the program's requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. Ibid. He was also granted custody of a minor daughter, based on a court's determination that he had been successfully rehabilitated. See Doe I v. Otte, 259 F.3d 979, 983 (CA9 2001). The court's determination rested in part on psychiatric evaluations concluding that Doe had "a very low risk of re-offending" and is "not a pedophile." Ibid. (internal quotation marks omitted). Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly *118 to label him a "Registered Sex Offender" for the rest of his life. Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals.

As JUSTICE SOUTER carefully explains, it is unclear whether the Alaska Legislature conceived of the State's Sex Offender Registration Act as a regulatory measure or as a * penal law. See ante, at 107-109 Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand "the clearest proof" that the statute is in effect criminal rather than civil. Instead, guided by I would neutrally evaluate the Act's purpose and effects. See ; cf. ("[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.").[1] Measured by the factors, I would hold Alaska's Act punitive in effect. Beyond doubt, the Act involves an "affirmative disability or restraint." As JUSTICE STEVENS and JUSTICE SOUTER spell out, Alaska's Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. See ante, at 109, and n. (SOUTER, J., concurring in judgment); ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). Furthermore, the Act's requirements resemble historically common forms of punishment. See Its registration and reporting provisions are comparable to conditions of supervised release or parole; its *116 public notification regimen, which permits placement of the registrant's face on a webpage under the label "Registered Sex Offender," calls to mind shaming punishments once used to mark an offender as someone to be shunned. See ante, at 111-112 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231); ante, at 109 (SOUTER, J., concurring in judgment). Telling too, as JUSTICE SOUTER observes, past crime alone, not current dangerousness, is the "touchstone" triggering the Act's obligations. ; see ante, at 112-113 (STEVENS, J., dissenting in No. 01-729 and concurring in judgment in No. 01-1231). This touchstone adds to the impression that the Act retributively targets past guilt, i.e., that it "revisit[s] past crimes [more than it] prevent[s] future ones." Ante, at 109 (SOUTER, J., concurring in judgment); see Tending the other way, I acknowledge, the Court has ranked some laws civil and nonpunitive although they impose significant disabilities or restraints. See, e. g., ; The Court has also deemed some laws nonpunitive despite "punitive aspects." See United What ultimately tips the balance for me is the Act's excessiveness in relation to its nonpunitive purpose. See As respondents concede, see Brief for Respondents 38, the Act has a legitimate civil purpose: to promote public safety by alerting the public to potentially recidivist sex offenders in the community. See ante, at 102-103 (majority opinion). But its scope notably exceeds this purpose. The Act applies to all convicted sex offenders, without regard to their future dangerousness. And the duration of the reporting requirement is keyed not *117 to any determination of a particular offender's risk of reoffending, but to whether the offense of conviction qualified as aggravated. The reporting requirements themselves are exorbitant: The Act requires aggravated offenders to engage in perpetual quarterly reporting, even if their personal information has not changed. See ante, at 90. And meriting heaviest weight in my judgment, the Act makes no provision whatever for the possibility of rehabilitation: Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation or conclusive proof of physical incapacitation.[2] However plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation. John Doe I, for example, pleaded nolo contendere to a charge of sexual abuse of a minor nine years before the Alaska Act was enacted. He successfully completed a treatment program, and gained early release on supervised probation in part because of his compliance with the program's requirements and his apparent low risk of reoffense. Brief for Respondents 1. He subsequently remarried, established a business, and was reunited with his family. He was also granted custody of a minor daughter, based on a court's determination that he had been successfully rehabilitated. See Doe The court's determination rested in part on psychiatric evaluations concluding that Doe had "a very low risk of re-offending" and is "not a pedophile." Notwithstanding this strong evidence of rehabilitation, the Alaska Act requires Doe to report personal information to the State four times per year, and permits the State publicly *118 to label him a "Registered Sex Offender" for the rest of his life. Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals.

Justice Scalia

majority

Alabama Dept. of Revenue v. CSX Transp., Inc.

2015-03-04

https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2783887/

2014-019

Federal law prohibits States from imposing taxes that “discriminat[e] against a rail carrier.” 49 U.S. C. §11501(b)(4). We are asked to decide whether a State violates this prohibition by taxing diesel fuel purchases made by a rail carrier while exempting similar purchases made by its competitors; and if so, whether the violation is eliminated when other tax provisions offset the challenged treatment of railroads. I Alabama taxes businesses and individuals for the pur­ chase or use of personal property. Ala. Code §§40–23–2(1), 40–23–61(a) (2011). Alabama law sets the general tax rate at 4% of the value of the property purchased or used. Ibid. The State applies the tax, at the usual 4% rate, to rail­ roads’ purchase or use of diesel fuel for their rail opera­ tions. But it exempts from the tax purchases and uses of diesel fuel made by trucking transport companies (whom we will call motor carriers) and companies that transport goods interstate through navigable waters (water carri­ 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. Opinion of the Court ers). Motor carriers instead pay a 19-cent-per-gallon fuel- excise tax on diesel; water carriers pay neither the sales nor fuel-excise tax on their diesel. §40–17–325(a)(2), and (b); §40–23–4(a)(10) (2014 Cum. Supp.). The parties stipu­ late that rail carriers, motor carriers, and water carriers compete. Respondent CSX Transportation, a rail carrier operating in Alabama and other States, believes this asymmetrical tax treatment “discriminates against a rail carrier” in violation of the alliterative Railroad Revitalization and Regulation Reform Act of 1976, or 4–R Act. 49 U.S. C. §11501(b)(4). It sought to enjoin petitioners, the Alabama Department of Revenue and its Commissioner (Alabama or State), from collecting sales tax on its diesel fuel purchases. At first, the District Court and Eleventh Circuit both rejected CSX’s complaint. CSX Transp., Inc. v. Alabama Dept. of Revenue, 350 Fed. Appx. 318 (2009). On this lawsuit’s first trip here, we reversed. We rejected the State’s argument that sales-and-use tax exemptions can­ not “discriminate” within the meaning of subsection (b)(4), and remanded the case for further proceedings. CSX Transp., Inc. v. Alabama Dept. of Revenue, 562 U.S. 277, 296–297 (2011) (CSX I). On remand, the District Court rejected CSX’s claim after a trial. 892 F. Supp. 2d 1300 (ND Ala. 2012). The Eleventh Circuit reversed. 720 F.3d 863 (2013). It held that, on CSX’s challenge, CSX could establish discrimina­ tion by showing the State taxed rail carriers differently than their competitors—which, by stipulation, included motor carriers and water carriers. But it rejected Ala­ bama’s argument that the fuel-excise taxes offset the sales taxes—in other words, that because it imposed its fuel- excise tax on motor carriers, but not rail carriers, it was justified in imposing the sales tax on rail carriers, but not motor carriers. Ibid. Cite as: 575 U. S. ____ (2015) 3 Opinion of the Court We granted certiorari to resolve whether the Eleventh Circuit properly regarded CSX’s competitors as an appro­ priate comparison class for its subsection (b)(4) claim. 573 U. S. ___ (2014). We also directed the parties to address whether, when resolving a claim of unlawful tax discrimi­ nation, a court should consider aspects of a State’s tax scheme apart from the challenged provision. Ibid. II The 4–R Act provides: “(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authority acting for a State or subdivision of a State may not do any of them: “(1) Assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and in­ dustrial property. “(2) Levy or collect a tax that may not be made un­ der paragraph (1) of this subsection. “(3) Levy or collect an ad valorem property tax at a tax rate that exceeds the tax rate applicable to com­ mercial and industrial property in the same assess­ ment jurisdiction. “(4) Impose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Board under this part.” §11501(b) (1)–(4). In our last opinion in this case, we held that “discrimi­ nates” in subsection (b)(4) carries its ordinary meaning, and that a tax discriminates under subsection (b)(4) when 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. Opinion of the Court it treats “groups [that] are similarly situated” differently without sufficient “justification for the difference in treat­ ment.” CSX I, supra, at 287. Here, we address the mean­ ing of these two quoted phrases. A The first question in this case is who is the “comparison class” for purposes of a subsection (b)(4) claim. Alabama argues that the only appropriate comparison class for a subsection (b)(4) claim is all general commercial and industrial taxpayers. We disagree. While all general and commercial taxpayers is an appropriate comparison class, it is not the only one. Nothing in the ordinary meaning of the word “discrimi­ nation” suggests that it occurs only when the victim is singled out relative to the population at large. If, for example, a State offers free college education to all return­ ing combat veterans, but arbitrarily excepts those who served in the Marines, we would say that Marines have experienced discrimination. That would remain the case even though the Marines are treated the same way as members of the general public, who have to pay for their education. Context confirms that the comparison class for subsec­ tion (b)(4) is not limited as Alabama suggests. The 4–R Act is an “asymmetrical statute.” Id., at 296. Subsections (b)(1) to (b)(3) contain three specific prohibitions directed towards property taxes. Each requires comparison of railroad property to commercial and industrial property in the same assessment jurisdiction. The Act therefore limits the comparison class for challenges under those provi­ sions. Even if the jurisdiction treats railroads less favor- ably than residential property, no violation of these subsec­ tions has occurred. Subsection (b)(4) contains no such limitation, leaving the comparison class to be determined as it is normally determined with respect to discrimination Cite as: 575 U. S. ____ (2015) 5 Opinion of the Court claims. And we think that depends on the theory of dis­ crimination alleged in the claim. When a railroad alleges that a tax targets it for worse treatment than local busi­ nesses, all other commercial and industrial taxpayers are the comparison class. When a railroad alleges that a tax disadvantages it compared to its competitors in the trans­ portation industry, the railroad’s competitors in that jurisdiction are the comparison class. So, picking a comparison class is extraordinarily easy. Unlike under subsections (b)(1)–(3), the railroad is not limited to all commercial and industrial taxpayers; all the world, or at least all the world within the taxing jurisdic­ tion, is its comparison-class oyster. But that is not as generous a concession as might seem. What subsection (b)(4) requires, and subsections (b)(1)–(3) do not, is a showing of discrimination—of a failure to treat similarly situated persons alike. A comparison class will thus sup­ port a discrimination claim only if it consists of individuals similarly situated to the claimant. That raises the question of when a proposed comparison class qualifies as similarly situated. In the Equal Protec­ tion Clause context, very few taxpayers are regarded as similarly situated and thus entitled to equal treatment. There, a State may tax different lines of businesses differ­ ently with near-impunity, even if they are apparently similar. We have upheld or approved of distinctions be­ tween utilities—including a railroad—and other corpora­ tions, New York Rapid Transit Corp. v. City of New York, 303 U.S. 573, 579 (1938), between wholesalers and retail­ ers in goods, Caskey Baking Co. v. Virginia, 313 U.S. 117, 120–121 (1941), between chain retail stores and independ­ ent retail stores, State Bd. of Tax Comm’rs of Ind. v. Jack- son, 283 U.S. 527, 535, 541–542 (1931), between anthra­ cite coal mines and bituminous coal mines, Heisler v. Thomas Colliery Co., 260 U.S. 245, 254, 257 (1922), and between sellers of coal oil and sellers of coal, Southwestern 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. Opinion of the Court Oil Co. v. Texas, 217 U.S. 114, 121 (1910). As one treatise has observed, we recognize a “wide latitude state legisla­ tures enjoy in drawing tax classifications under the Equal Protection Clause.” 1 J. Hellerstein & W. Hellerstein, State Taxation ¶3.03[1], p. 3–5 (3d ed. 2001–2005). This includes the power to impose “widely different taxes on various trades or professions.” Id., at 3–5 to 3–6. It would be permissible—as far as the Equal Protection Clause is concerned—for a State to tax a rail carrier more than a motor carrier, despite the seeming similarity in their lines of business. The concept of “similarly situated” individuals cannot be so narrow here. That would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides. Moreover, the cate- gory of “similarly situated” (b)(4) comparison classes must include commercial and industrial taxpayers. There is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads. And we think the competitors of rail­ roads can be another “similarly situated” comparison class, since discrimination in favor of that class most obviously frustrates the purpose of the 4–R Act, which was to “restore the financial stability of the railway system of the United States,” §101(a), 90 Stat. 33, while “foster[ing] competition among all carriers by railroad and other modes of transportation,” §101(b)(2). We need not, and thus do not, express any opinion on what other comparison classes may qualify. Sufficient unto the day is the evil thereof. Alabama claims that because subsections (b)(1) and (b)(3) (and (b)(2) through reference to (b)(1)) establish a comparison class of “commercial and industrial property,” subsection (b)(4) must establish a comparison class of “general commercial and industrial taxpayers.” This Cite as: 575 U. S. ____ (2015) 7 Opinion of the Court inverts normal rules of interpretation, which would say that the explicit limitation to “commercial and industrial” in the first three provisions, and the absence of such a limitation in the fourth, suggests that no such limitation applies to the fourth. Moreover, Alabama’s interpretation would require us to dragoon the modifier “commercial and industrial”—but not the noun “property”—from the first three provisions, append “general” in front of it and “tax­ payers” after, both words foreign to the preceding subsec­ tions. We might also have to strip away the restrictions in the definition of “commercial and industrial property,” which excludes land primarily used for agricultural pur­ poses and timber growing. 49 U.S. C. §11501(a)(4). This is not our concept of fidelity to a statute’s text. Alabama responds that the introductory clause of §11501(b)—which declares that the “following acts unrea­ sonably burden and discriminate against interstate com- merce,”—“binds its four subsections together,” Brief for Petitioners 23 (emphasis deleted), and gives them a com­ mon object and scope. The last time this case appeared before us, Alabama made a similar argument in support of the claim that, because subsections (b)(1)–(3) cover only property taxes, so too does subsection (b)(4). See Brief for Respondents in CSX Transp., Inc. v. Alabama Dept. of Revenue, O. T. 2010, No. 09–520, p. 25–26. We rejected this argument then, and we reject it again now. Alabama persists that a case-specific inquiry allows a railroad to “hand-pick [its] comparison class,” Brief for Petitioners 41, which would be unfair—a “windfall” to railroads. Ibid. As we have described above, picking a class is easy, but it is not easy to establish that the selected class is “similarly situated” for purposes of discrimina­ tion in taxation. The Eleventh Circuit properly concluded that, in light of CSX Transportation’s complaint and the parties’ stipulation, a comparison class of competitors consisting of motor carriers and water carriers was appro­ 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. Opinion of the Court priate, and differential treatment vis-à-vis that class would constitute discrimination. We therefore turn to the court’s refusal to consider Alabama’s alternative tax justifications. B A State’s tax discriminates only where the State cannot sufficiently justify differences in treatment between simi­ larly situated taxpayers. As we have discussed above, a rail carrier and its competitors can be considered similarly situated for purposes of this provision. But what about the claim that those competitors are subject to other taxes that the railroads avoid? We think Alabama can justify its decision to exempt motor carriers from its sales and use tax through its decision to subject motor carriers to a fuel- excise tax. It does not accord with ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt. If that were true, both competitors could claim to be disfavored— discriminated against—relative to each other. Our nega­ tive Commerce Clause cases endorse the proposition that an additional tax on third parties may justify an otherwise discriminatory tax. Gregg Dyeing Co. v. Query, 286 U.S. 472, 479–480 (1932). We think that an alternative, roughly equivalent tax is one possible justification that renders a tax disparity nondiscriminatory. CSX claims that because the statutory prohibition for­ bids “impos[ing] another tax that discriminates against a rail carrier,” 49 U.S. C. §11501(b)(4)—“tax” in the singu­ lar—the appropriate inquiry is whether the challenged tax discriminates, not whether the tax code as a whole does so. It is undoubtedly correct that the “tax” (singular) must discriminate—but it does not discriminate unless it treats railroads differently from other similarly situated taxpay­ Cite as: 575 U. S. ____ (2015) 9 Opinion of the Court ers without sufficient justification. A comparable tax levied on a competitor may justify not extending that competitor’s exemption from a general tax to a railroad. It is easy to display the error of CSX’s single-tax-provision approach. Under that model, the following tax would violate the 4–R Act: “(1) All railroads shall pay a 4% sales tax. (2) All other individuals shall also pay a 4% sales tax.” CSX would undoubtedly object that not every case will be so easy, and that federal courts are ill qualified to explore the vagaries of state tax law. We are inclined to agree, but that cannot carry the day. Congress assigned this task to the courts by drafting an antidiscrimination command in such sweeping terms. There is simply no discrimination when there are roughly comparable taxes. If the task of determining when that is so is “Sisyphean,” as the Eleventh Circuit called it, 720 F.3d, at 871, it is a Sisyphean task that the statute imposes. We therefore cannot approve of the Eleventh Circuit’s refusal to consider Alabama’s tax-based justification, and remand for that court to consider whether Alabama’s fuel-excise tax is the rough equivalent of Alabama’s sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales- tax exemption. C While the State argues that the existence of a fuel- excise tax justifies its decision to exempt motor carriers from the sales and use tax, it cannot offer a similar de­ fense with respect to its exemption for water carriers. Water carriers pay neither tax. The State, however, offers other justifications for the water carrier exemption—for example, that such an ex­ emption is compelled by federal law. The Eleventh Circuit failed to examine these justifications, asserting that the water carriers were the beneficiaries of a discriminatory 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. Opinion of the Court tax regime. We do not consider whether Alabama’s alter­ native rationales justify its exemption, but leave that question for the Eleventh Circuit on remand. * * * The judgment of the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 575 U. S. ____ (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–553 _________________ ALABAMA DEPARTMENT OF REVENUE, ET AL., PETITIONERS v. CSX TRANSPORTATION, INC.

Federal law prohibs States from imposing taxes that “discriminat[e] against a rail carrier.” 49 U.S. C. We are asked to decide whether a State violates this prohibion by taxing diesel fuel purchases made by a rail carrier while exempting similar purchases made by s competors; and if so, whether the violation is eliminated when other tax provisions offset the challenged treatment of railroads. Alabama taxes businesses and individuals for the pur­ chase or use of personal property. –23–2(1), 40–23–61(a) (2011). Alabama law sets the general tax rate at 4% of the value of the property purchased or used. The State applies the tax, at the usual 4% rate, to rail­ roads’ purchase or use of diesel fuel for their rail opera­ tions. But exempts from the tax purchases and uses of diesel fuel made by trucking transport companies (whom we will call motor carriers) and companies that transport goods interstate through navigable waters (water carri­ 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. Opinion of the Court ers). Motor carriers instead pay a 19-cent-per-gallon fuel- excise tax on diesel; water carriers pay neher the sales nor fuel-excise tax on their diesel. and (b); (2014 Cum. Supp.). The parties stipu­ late that rail carriers, motor carriers, and water carriers compete. Respondent CSX Transportation, a rail carrier operating in Alabama and other States, believes this asymmetrical tax treatment “discriminates against a rail carrier” in violation of the allerative Railroad Revalization and Regulation Reform Act of 1976, or 4–R Act. 49 U.S. C. t sought to enjoin petioners, the Alabama Department of Revenue and s Commissioner (Alabama or State), from collecting sales tax on s diesel fuel purchases. At first, the District Court and Eleventh Circu both rejected CSX’s complaint. CSX Transp., On this lawsu’s first trip here, we reversed. We rejected the State’s argument that sales-and-use tax exemptions can­ not “discriminate” whin the meaning of subsection (b)(4), and remanded the case for further proceedings. CSX Transp., 296–297 (2011) (CSX ). On remand, the District Court rejected CSX’s claim after a trial. The Eleventh Circu reversed. t held that, on CSX’s challenge, CSX could establish discrimina­ tion by showing the State taxed rail carriers differently than their competors—which, by stipulation, included motor carriers and water carriers. But rejected Ala­ bama’s argument that the fuel-excise taxes offset the sales taxes—in other words, that because imposed s fuel- excise tax on motor carriers, but not rail carriers, was justified in imposing the sales tax on rail carriers, but not motor carriers. Ce as: 575 U. S. (2015) 3 Opinion of the Court We granted certiorari to resolve whether the Eleventh Circu properly regarded CSX’s competors as an appro­ priate comparison class for s subsection (b)(4) claim. 573 U. S. (2014). We also directed the parties to address whether, when resolving a claim of unlawful tax discrimi­ nation, a court should consider aspects of a State’s tax scheme apart from the challenged provision. The 4–R Act provides: “(b) The following acts unreasonably burden and discriminate against interstate commerce, and a State, subdivision of a State, or authory acting for a State or subdivision of a State may not do any of them: “(1) Assess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and in­ dustrial property. “(2) Levy or collect a tax that may not be made un­ der paragraph (1) of this subsection. “(3) Levy or collect an ad valorem property tax at a tax rate that exceeds the tax rate applicable to com­ mercial and industrial property in the same assess­ ment jurisdiction. “(4) mpose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Board under this part.” (1)–(4). n our last opinion in this case, we held that “discrimi­ nates” in subsection (b)(4) carries s ordinary meaning, and that a tax discriminates under subsection (b)(4) when 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. Opinion of the Court treats “groups [that] are similarly suated” differently whout sufficient “justification for the difference in treat­ ment.” CSX Here, we address the mean­ ing of these two quoted phrases. A The first question in this case is who is the “comparison class” for purposes of a subsection (b)(4) claim. Alabama argues that the only appropriate comparison class for a subsection (b)(4) claim is all general commercial and industrial taxpayers. We disagree. While all general and commercial taxpayers is an appropriate comparison class, is not the only one. Nothing in the ordinary meaning of the word “discrimi­ nation” suggests that occurs only when the victim is singled out relative to the population at large. f, for example, a State offers free college education to all return­ ing combat veterans, but arbrarily excepts those who served in the Marines, we would say that Marines have experienced discrimination. That would remain the case even though the Marines are treated the same way as members of the general public, who have to pay for their education. Context confirms that the comparison class for subsec­ tion (b)(4) is not limed as Alabama suggests. The 4–R Act is an “asymmetrical statute.” d., Subsections (b)(1) to (b)(3) contain three specific prohibions directed towards property taxes. Each requires comparison of railroad property to commercial and industrial property in the same assessment jurisdiction. The Act therefore lims the comparison class for challenges under those provi­ sions. Even if the jurisdiction treats railroads less favor- ably than residential property, no violation of these subsec­ tions has occurred. Subsection (b)(4) contains no such limation, leaving the comparison class to be determined as is normally determined wh respect to discrimination Ce as: 575 U. S. (2015) 5 Opinion of the Court claims. And we think that depends on the theory of dis­ crimination alleged in the claim. When a railroad alleges that a tax targets for worse treatment than local busi­ nesses, all other commercial and industrial taxpayers are the comparison class. When a railroad alleges that a tax disadvantages compared to s competors in the trans­ portation industry, the railroad’s competors in that jurisdiction are the comparison class. So, picking a comparison class is extraordinarily easy. Unlike under subsections (b)(1)–(3), the railroad is not limed to all commercial and industrial taxpayers; all the world, or at least all the world whin the taxing jurisdic­ tion, is s comparison-class oyster. But that is not as generous a concession as might seem. What subsection (b)(4) requires, and subsections (b)(1)–(3) do not, is a showing of discrimination—of a failure to treat similarly suated persons alike. A comparison class will thus sup­ port a discrimination claim only if consists of individuals similarly suated to the claimant. That raises the question of when a proposed comparison class qualifies as similarly suated. n the Equal Protec­ tion Clause context, very few taxpayers are regarded as similarly suated and thus entled to equal treatment. There, a State may tax different lines of businesses differ­ ently wh near-impuny, even if they are apparently similar. We have upheld or approved of distinctions be­ tween utilies—including a railroad—and other corpora­ tions, New York Rapid Trans between wholesalers and retail­ ers in goods, Caskey Baking 120– (1941), between chain retail stores and independ­ ent retail stores, State Bd. of Tax Comm’rs of nd. v. Jack- son, between anthra­ ce coal mines and buminous coal mines, Heisler v. Thomas Colliery Co., and between sellers of coal oil and sellers of coal, Southwestern 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. Opinion of the Court Oil As one treatise has observed, we recognize a “wide latude state legisla­ tures enjoy in drawing tax classifications under the Equal Protection Clause.” 1 J. Hellerstein & W. Hellerstein, State Taxation ¶3.03[1], p. 3–5 (3d ed. 2001–2005). This includes the power to impose “widely different taxes on various trades or professions.” d., at 3–5 to 3–6. t would be permissible—as far as the Equal Protection Clause is concerned—for a State to tax a rail carrier more than a motor carrier, despe the seeming similary in their lines of business. The concept of “similarly suated” individuals cannot be so narrow here. That would deprive subsection (b)(4) of all real-world effect, providing protection that the Equal Protection Clause already provides. Moreover, the cate- gory of “similarly suated” (b)(4) comparison classes must include commercial and industrial taxpayers. There is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but perm other taxes that discriminate in favor of that class vis-à-vis railroads. And we think the competors of rail­ roads can be another “similarly suated” comparison class, since discrimination in favor of that class most obviously frustrates the purpose of the 4–R Act, which was to “restore the financial stabily of the railway system of the Uned States,” while “foster[ing] competion among all carriers by railroad and other modes of transportation,” We need not, and thus do not, express any opinion on what other comparison classes may qualify. Sufficient unto the day is the evil thereof. Alabama claims that because subsections (b)(1) and (b)(3) (and (b)(2) through reference to (b)(1)) establish a comparison class of “commercial and industrial property,” subsection (b)(4) must establish a comparison class of “general commercial and industrial taxpayers.” This Ce as: 575 U. S. (2015) 7 Opinion of the Court inverts normal rules of interpretation, which would say that the explic limation to “commercial and industrial” in the first three provisions, and the absence of such a limation in the fourth, suggests that no such limation applies to the fourth. Moreover, Alabama’s interpretation would require us to dragoon the modifier “commercial and industrial”—but not the noun “property”—from the first three provisions, append “general” in front of and “tax­ payers” after, both words foreign to the preceding subsec­ tions. We might also have to strip away the restrictions in the definion of “commercial and industrial property,” which excludes land primarily used for agricultural pur­ poses and timber growing. 49 U.S. C. This is not our concept of fidely to a statute’s text. Alabama responds that the introductory clause of —which declares that the “following acts unrea­ sonably burden and discriminate against interstate com- merce,”—“binds s four subsections together,” Brief for Petioners 23 (emphasis deleted), and gives them a com­ mon object and scope. The last time this case appeared before us, Alabama made a similar argument in support of the claim that, because subsections (b)(1)–(3) cover only property taxes, so too does subsection (b)(4). See Brief for Respondents in CSX Transp., nc. v. Alabama Dept. of Revenue, O. T. 2010, No. 09–520, p. 25–26. We rejected this argument then, and we reject again now. Alabama persists that a case-specific inquiry allows a railroad to “hand-pick [s] comparison class,” Brief for Petioners 41, which would be unfair—a “windfall” to railroads. As we have described above, picking a class is easy, but is not easy to establish that the selected class is “similarly suated” for purposes of discrimina­ tion in taxation. The Eleventh Circu properly concluded that, in light of CSX Transportation’s complaint and the parties’ stipulation, a comparison class of competors consisting of motor carriers and water carriers was appro­ 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. Opinion of the Court priate, and differential treatment vis-à-vis that class would constute discrimination. We therefore turn to the court’s refusal to consider Alabama’s alternative tax justifications. B A State’s tax discriminates only where the State cannot sufficiently justify differences in treatment between simi­ larly suated taxpayers. As we have discussed above, a rail carrier and s competors can be considered similarly suated for purposes of this provision. But what about the claim that those competors are subject to other taxes that the railroads avoid? We think Alabama can justify s decision to exempt motor carriers from s sales and use tax through s decision to subject motor carriers to a fuel- excise tax. t does not accord wh ordinary English usage to say that a tax discriminates against a rail carrier if a rival who is exempt from that tax must pay another comparable tax from which the rail carrier is exempt. f that were true, both competors could claim to be disfavored— discriminated against—relative to each other. Our nega­ tive Commerce Clause cases endorse the proposion that an addional tax on third parties may justify an otherwise discriminatory tax. Gregg Dyeing Co. v. Query, 286 U.S. 472, 479–480 (1932). We think that an alternative, roughly equivalent tax is one possible justification that renders a tax dispary nondiscriminatory. CSX claims that because the statutory prohibion for­ bids “impos[ing] another tax that discriminates against a rail carrier,” 49 U.S. C. (4)—“tax” in the singu­ lar—the appropriate inquiry is whether the challenged tax discriminates, not whether the tax code as a whole does so. t is undoubtedly correct that the “tax” (singular) must discriminate—but does not discriminate unless treats railroads differently from other similarly suated taxpay­ Ce as: 575 U. S. (2015) 9 Opinion of the Court ers whout sufficient justification. A comparable tax levied on a competor may justify not extending that competor’s exemption from a general tax to a railroad. t is easy to display the error of CSX’s single-tax-provision approach. Under that model, the following tax would violate the 4–R Act: “(1) All railroads shall pay a 4% sales tax. (2) All other individuals shall also pay a 4% sales tax.” CSX would undoubtedly object that not every case will be so easy, and that federal courts are ill qualified to explore the vagaries of state tax law. We are inclined to agree, but that cannot carry the day. Congress assigned this task to the courts by drafting an antidiscrimination command in such sweeping terms. There is simply no discrimination when there are roughly comparable taxes. f the task of determining when that is so is “Sisyphean,” as the Eleventh Circu called is a Sisyphean task that the statute imposes. We therefore cannot approve of the Eleventh Circu’s refusal to consider Alabama’s tax-based justification, and remand for that court to consider whether Alabama’s fuel-excise tax is the rough equivalent of Alabama’s sales tax as applied to diesel fuel, and therefore justifies the motor carrier sales- tax exemption. C While the State argues that the existence of a fuel- excise tax justifies s decision to exempt motor carriers from the sales and use tax, cannot offer a similar de­ fense wh respect to s exemption for water carriers. Water carriers pay neher tax. The State, however, offers other justifications for the water carrier exemption—for example, that such an ex­ emption is compelled by federal law. The Eleventh Circu failed to examine these justifications, asserting that the water carriers were the beneficiaries of a discriminatory 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. Opinion of the Court tax regime. We do not consider whether Alabama’s alter­ native rationales justify s exemption, but leave that question for the Eleventh Circu on remand. * * * The judgment of the Eleventh Circu is reversed, and the case is remanded for further proceedings consistent wh this opinion. t is so ordered. Ce as: 575 U. S. (2015) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNTED STATES No. 13–553 ALABAMA DEPARTMENT OF REVENUE, ET AL., PETTONERS v. CSX TRANSPORTATON, NC.

Justice Thomas

dissenting

Alabama Dept. of Revenue v. CSX Transp., Inc.

2015-03-04

https://www.courtlistener.com/opinion/2783887/alabama-dept-of-revenue-v-csx-transp-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2783887/

2014-019

In order to violate 49 U.S. C. §11501(b)(4), “a tax ex­ emption scheme must target or single out railroads by comparison to general commercial and industrial taxpay­ ers.” CSX Transp., Inc. v. Alabama Dept. of Revenue (CSX I ), 562 U.S. 277, 297–298 (2011) (THOMAS, J., dissenting). Because CSX cannot prove facts that would satisfy that standard, I would reverse the judgment below and remand for the entry of judgment in favor of the Alabama Depart­ ment of Revenue. I A Last time this case was before the Court, I explained in detail my reasons for interpreting “another tax that dis­ criminates against a rail carrier” in §11501(b)(4) to refer to a tax “that targets or singles out railroads as compared to other commercial and industrial taxpayers.” Id., at 298. I briefly summarize that reasoning here. Because the meaning of “discriminates” is ambiguous at first glance, I look to the term’s context to resolve this uncertainty. Id., at 298–299. Both the structure and background of the statute indicate that subsection (b)(4) prohibits only taxes that single out railroads as compared 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting to other commercial and industrial taxpayers. Subsection (b)(4) is a residual clause, the meaning of which is best understood by reference to the provisions that precede it. Subsection (b) begins by announcing that “[t]he following acts . . . discriminate against interstate commerce” and are prohibited. §11501(b). Subsections (b)(1) through (3) then list three tax-related actions that single out rail carriers by treating rail property differently from all other commercial and industrial property. §§11501(b)(1)–(3); id., at 300. Subsections (b)(1) and (b)(3) explicitly identify “commercial and industrial property” as the comparison class, and subsection (b)(2) incorporates that comparison class by reference. §11501(b); id., at 300. Subsection (b)(4) refers back to these provisions when it forbids “[i]mpos[ing] another tax that discriminates against a rail carrier.” §11501(b)(4) (emphasis added); id., at 300). The statutory structure therefore supports the conclusion that a tax “discriminates against a rail carrier” within the meaning of subsection (b)(4) if it singles out railroads for unfavorable treatment as compared to the general class of commercial and industrial taxpayers. Id., at 300–301. The statutory background supports the same conclusion. When Congress enacted the 4–R Act, it was apparent that railroads were “easy prey for State and local tax assessors in that they are nonvoting, often nonresident, targets for local taxation, who cannot easily remove themselves from the locality.” Id., at 301 (internal quotation marks omit­ ted). Subsections (b)(1) through (3) thus “establish a political check” by preventing States from imposing exces­ sive property taxes on railroads “without imposing the same taxes more generally on voting, resident local busi­ nesses.” Ibid. Subsection (b)(4) is best understood as addressing the same problem in the same way. Id., at 301–302. Cite as: 575 U. S. ____ (2015) 3 THOMAS, J., dissenting B Alabama’s tax scheme cannot be said to “discriminat[e] against a rail carrier.” Id., at 302. To begin, the scheme does not single out rail carriers. Although one would not know it from the majority opinion, the tax is not directed at rail carriers, their property, their activity, or goods uniquely consumed by them. It is instead a generally applicable sales tax. It applies (with other exemptions not at issue here) to all goods purchased, used, or stored in the State of Alabama. Ala. Code §§40–23–2(1), 40–23–61(a) (2011). The only relevant good exempted from the tax is diesel on which the motor fuel tax has been paid, §40–17– 325(b), and no provision of law prevents rail carriers from buying such diesel. See Brief for Respondent 46, n. 13 (acknowledging that CSX pays the motor fuel tax on the diesel fuel it uses in trucks and other on-road vehic- les). Water carriers, it is true, enjoy a special carve-out from this sales tax, §40–23–4(a)(10) (Cum. Supp. 2014), but that exemption singles out water carriers, not rail carriers. Even if this constellation of exemptions to Alabama’s sales tax could be said to single out rail carriers from the general class of their interstate competitors, the tax surely does not single out rail carriers as compared to commercial and industrial taxpayers. Those taxpayers are subject to exactly the same generally applicable sales and use tax regime as are rail carriers. II A The Court started off on the wrong track in CSX I when it relied on a generic dictionary definition of “discrimi­ nates” in the face of a statutory context suggesting a more specific definition. See 562 U.S., at 304. Today’s decision continues that error. The Court uncritically accepts the conclusion that the 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting “discriminat[ion]” addressed by the statute encompasses any distinction between rail carriers and their comparison class, ante, at 4, as opposed to mere “singling out” or some­ thing in between, even though the word “discriminates” is ambiguous in that way. CSX I, supra, at 299. The Court’s usual practice has not been to treat the meaning of “discriminates” so casually. See generally Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 590–593 (1983) (opinion of White, J.) (discussing the Court’s shifting definition of the ambiguous term “discrimination”). Today’s decision compounds this error by holding that a rail carrier may make out a claim of discrimination using any comparison class so long as that class consists of “individuals similarly situated to the claimant” rail carrier. Ante, at 5. The majority purports to derive this limita- tion from the dictionary, but then finds itself unable to proceed: After all, Black’s Law Dictionary contains no entry defining what it means to be “similarly situated” for the purpose of subsection (b)(4). Forced finally to turn to the statutory context, the majority rejects the statutorily defined competitor class of commercial and industrial taxpayers in favor of a shifting comparison class of its own creation. B The majority disregards the commercial and industrial property comparison class identified in subsections (b)(1) through (3) because subsection (b)(4) does not explicitly include language from those provisions. See ante, at 4–5, 6–7. It asserts that defining the comparison class for the purpose of subsection (b)(4) by reference to the comparison class identified in subsections (b)(1) through (b)(3) “would require us to dragoon the modifier ‘commercial and indus­ trial’—but not the noun ‘property’—from the first three provisions, append ‘general’ in front of it and ‘taxpayers’ Cite as: 575 U. S. ____ (2015) 5 THOMAS, J., dissenting after, both words foreign to the preceding subsections.” Ante, at 7. The majority’s accusation of grammatical conscription misses the point. Subsection (b)(4) is a residual clause, explicitly marked as such by the use of the word “another.” See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003). Like other residual clauses, it need not use the same language as the clauses it follows to derive meaning from those clauses. See, e.g., Sossamon v. Texas, 563 U.S. 277, ___ (2011) (slip op., at 13); James v. United States, 550 U.S. 192, 217–218 (2007) (SCALIA, J., dissenting). Where, as here, a residual clause includes an ambiguous word like “discriminates,” we must look to the clauses that precede it to guide our understanding of its scope. In some sense, my task in giving meaning to the statu­ tory term “discriminates” is no different from the major­ ity’s: to determine what type of differential treatment the statute forbids. The first three clauses provide important clues that the statute forbids singling out rail carriers from other commercial and industrial taxpayers because commercial and industrial taxpayers are the ones who pay taxes on “commercial and industrial property.” The major­ ity pursues the same logical train of thought when it opines that “the category of ‘similarly situated’ (b)(4) comparison classes must include commercial and indus- trial taxpayers” because “[t]here is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads.” Ante, at 6. Where we part ways is in the inferences we draw from the statutory context. Treating subsection (b)(4) as a residual clause does not require the grammatical distortions that the majority alleges. The word “discriminates” in subsection (b)(4) is not a referential phrase whose antecedent is uncertain. If 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting it were, then it would be necessary to select an antecedent that would fit grammatically in place of “discriminates.” Instead, I look to (b)(1) to (3) merely to clarify an ambigu- ity in the meaning of “discriminates,” a task that does not require me to “dragoon” the language of the prior clauses into subsection (b)(4). Nor does my approach rely on the first three clauses of §11501(b) to supply a general limitation on the independ­ ent prohibition that appears in subsection (b)(4). See United States v. Aguilar, 515 U.S. 593, 615 (1995) (SCALIA, J., concurring in part and dissenting in part) (criticizing this type of argument). That is what Alabama sought to do in CSX I when it argued that subsection (b)(4) is limited to property taxes (or their equivalent “in lieu” taxes). Ante, at 7; CSX I, 562 U.S., at 285 (majority opin­ ion). I joined the majority in rejecting that argument. Id., at 297 (dissenting opinion). But whereas there is no un­ certainty about the meaning of “taxes” in subsection (b)(4) that would justify importing the property tax limitation from the three preceding subsections, id., at 284–285 (majority opinion), there is a good deal of uncertainty about the meaning of “discriminates.” This uncertainty justifies looking to the three previous clauses to under­ stand the type of differential treatment §11501(b) is meant to prohibit. Id., at 298–299 (dissenting opinion); see Harrison v. PPG Industries, Inc., 446 U.S. 578, 588– 589 (1980). And those three previous clauses easily supply the answer to the comparison class question. C Unwilling to so limit the range of available comparison classes, the majority takes an approach to determining which individuals are “similarly situated” for purposes of the statute that “is almost entirely ad hoc,” James, supra, at 215 (SCALIA, J., dissenting). It asserts that the compar­ ison class will “depen[d] on the theory of discrimination Cite as: 575 U. S. ____ (2015) 7 THOMAS, J., dissenting alleged in the claim.” Ante, at 4–5. Sometimes the com­ parison class will be “all other commercial and industrial taxpayers,” sometimes it will be “the railroad’s competi­ tors” in a particular jurisdiction, and sometimes it may be some other comparison class entirely. Id., at 5. The sole evidence on which the majority relies to con­ clude that competitors are similarly situated, and there­ fore qualify as a comparison class, is the professed pur­ poses of the Act: “to ‘restore the financial stability of the railway system of the United States,’ while ‘foster[ing] competition among all carriers by railroad and other modes of transportation.’ ” Ante, at 6 (quoting 90 Stat. 33, §§101(a), (b)(2)). Interpreting statutory text solely in light of purpose, absent any reliance on text or structure, is dangerous business because it places courts in peril of substituting their policy judgment for that of Congress. In considering statutory purpose, therefore, we should be careful that any inferences of purpose are tied to text rather than instinct. The majority throws such caution to the wind. Its two- sentence argument is a perfect illustration of the dangers of a purely purpose-based approach. The majority cherry- picks two of a number of stated goals of a complex piece of legislation over 100 pages long and assumes that this specific provision was assigned to those specific purposes. And then it interprets the statute to perform in the man­ ner the majority believes is best designed to “restore . . . financial stability” and “foster . . . competition.” Ante, at 6 (alteration omitted). I have no reason to doubt the economic soundness of the majority’s conclusion that discrimination between rail carriers and their competitors threatens their financial stability and impedes competition, but I lack the major- ity’s certitude that §11501(b)(4) is designed to further those goals by combatting that evil, at least in the way the ma­ jority asserts. Instead, the first three subsections provide 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting strong textual evidence that §11501(b) was designed to stabilize rail carriers by protecting them from discrimina­ tion against interstate commerce. And they provide evi­ dence of Congress’ chosen mechanism for accomplishing that goal: tying the fate of interstate rail carriers to the broader class of commercial and industrial taxpayers. See supra, at 2. The introductory clause of §11501(b) provides further evidence that the evil at which subsection (b)(4) is tar- geted is not discrimination between rail carriers and their competitors, but “acts [that] unreasonably burden and discriminate against interstate commerce.” The majority’s response to this evidence—that the Court rejected a simi­ lar argument when it refused to limit subsection (b)(4) to property taxes or their kin, ante, at 7—is a non sequitur. The introductory clause contains no reference to property taxes that “binds its four subsections together” as prohibi­ tions on discriminatory property taxes. Ibid. (internal quotation marks omitted). But it does have a reference to discrimination against interstate commerce, which does tie the sections together to serve that common statutory purpose. This, in turn, weighs against the majority’s inferences about how §11501(b) relates to the stated pur­ poses of the 4–R Act. The majority’s conclusion that competitors are a permis­ sible comparison class completely ignores these contextual clues, permitting subsection (b)(4) to serve different statu­ tory goals by a different mechanism than its three prede­ cessor clauses. And it leads to odd inconsistencies. If we were to understand the provision as prohibiting only discrimination between rail carriers and their competitors, then it might well further the goal of promoting competi­ tion between interstate carriers. But the majority instead selects a shifting-comparison-class approach, requiring rail carriers to be treated at least as well as their competi­ tors and any other similarly situated taxpayers. See ante, Cite as: 575 U. S. ____ (2015) 9 THOMAS, J., dissenting at 4–5. This most-favored taxpayer status is a position the competitors do not enjoy, so the majority’s position could result in tax schemes that impede competition between interstate carriers rather than promote it. Identifying “similarly situated” taxpayers by the undis­ ciplined approach the majority endorses could well lead to other unanticipated consequences. This is why the policy judgments needed to link statutory mechanisms to statu­ tory purposes are best left to Congress. If this Court is going to adopt a shifting-comparison-class approach to §11501(b)(4), then it should at least demand a stronger textual link between the comparison class a claimant seeks to import into subsection (b)(4) and any purpose that the claimant argues it serves. III Because the majority adopts an interpretation of §11501(b)(4) that is not grounded in the text, it should come as no surprise that this interpretation is difficult to apply, as this case demonstrates. It is easy to see how, accepting water carriers as a comparison class, the scheme treats water carriers and rail carriers differently when it grants water carriers, but not rail carriers, an exemption from the sales tax. Ala. Code §40–23–4(a)(10). Identifying the difference in treatment between rail and motor car- riers, by contrast, requires a good deal more imagination. The majority’s approach exhibits that imagination. It glosses over the general applicability of the provisions that apply to rail and motor carriers, stating that “[t]he State applies the [sales or use] tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail oper­ ations,” but “exempts from the tax purchases and uses of diesel fuel made by [motor carriers].” Ante, at 1. A quick glimpse at the code reveals that this is not quite the case. The applicability of the sales and use taxes does not de­ pend on the identity of the purchaser, but on whether the 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., INC. THOMAS, J., dissenting purchaser pays another excise tax, §40–17–325(b), which in turn depends on the nature of the product purchased and its use, §§40–17–328, 40–17–329, which in turn merely correlates to the carriers’ operations. As far as I can tell, the rail carriers use dyed diesel that is exempt from the motor fuel tax—and therefore subject to the sales and use taxes—as a matter of choice rather than necessity. Dyed diesel has no special properties that make it more suitable for use in a train engine; the dye merely identifies it as exempt from the federal excise tax, §40–17–322(21). And no law prohibits rail carriers from using undyed diesel. To the contrary, it is the motor carriers who are prohibited from using the dyed variant for on-road use. Assuming arguendo that state law provides that only dyed diesel may be used in rail operations, it becomes a little easier to make an argument that the State treats rail carriers differently in this case. But the majority still faces a line-drawing problem. Is it necessary that the good subject to the challenged tax be the same as the good on which the competitor enjoys an exemption? Could a rail carrier that relies on natural gas rather than diesel for motive power make the same claim of discrimination if natural gas is not entitled to the same sales-tax exemption as diesel? Is it necessary that the rail carrier and its competitor rely on the good for the same purpose? Could a rail carrier that uses diesel for motive power challenge a hypothetical provision that exempted from the sales and use taxes diesel that motor carriers use for refrigeration in refrigerated trailers? The majority never answers these questions. “Sufficient unto the day is the evil thereof,” it intones. Ante, at 6. “That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: pro­ vide guidance concrete enough to ensure that the” statute is applied consistently. James, 550 U.S., at 215 (SCALIA, Cite as: 575 U. S. ____ (2015) 11 THOMAS, J., dissenting J., dissenting). We have demanded clarity from Congress when it comes to statutes that “se[t] limits upon the taxa­ tion authority of state government, an authority we have recognized as central to state sovereignty.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 344–345 (1994). We should demand the same of ourselves when we interpret those statutes. Yet after today’s deci­ sion, lower courts, soon to be met with an oyster’s shellful of comparison classes, ante, at 5, will have no idea how to determine when a tax exemption that is not tied to the taxpayer’s status constitutes differential treatment of two taxpayers. * * * The majority’s interpretation of §11501(b)(1) derails ambiguous text from clarifying context. The result it reaches is predictably unworkable. And it prolongs Ala­ bama’s burden of litigating a baseless claim of discrimina­ tion that should have been dismissed long ago. I respect­ fully dissent

n order to violate 49 U.S. C. “a tax ex­ emption scheme must target or single out railroads by comparison to general commercial and industrial taxpay­ ers.” CSX Transp., Because CSX cannot prove facts that would satisfy that standard, would reverse the judgment below and remand for the entry of judgment in favor of the Alabama Depart­ ment of Revenue. A Last time this case was before the Court, explained in detail my reasons for interpreting “another tax that dis­ criminates against a rail carrier” in to refer to a tax “that targets or singles out railroads as compared to other commercial and industrial taxpayers.” briefly summarize that reasoning here. Because the meaning of “discriminates” is ambiguous at first glance, look to the term’s context to resolve this uncertainty. –299. Both the structure and background of the statute indicate that subsection (b)(4) prohibits only taxes that single out railroads as compared 2 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting to other commercial and industrial taxpayers. Subsection (b)(4) is a residual clause, the meaning of which is best understood by reference to the provisions that precede it. Subsection (b) begins by announcing that “[t]he following acts discriminate against interstate commerce” and are prohibited. Subsections (b)(1) through (3) then list three tax-related actions that single out rail carriers by treating rail property differently from all other commercial and industrial property. Subsections (b)(1) and (b)(3) explicitly identify “commercial and industrial property” as the comparison class, and subsection (b)(2) incorporates that comparison class by reference. Subsection (b)(4) refers back to these provisions when it forbids “[i]mpos[ing] another tax that discriminates against a rail carrier.” (emphasis added); ). The statutory structure therefore supports the conclusion that a tax “discriminates against a rail carrier” within the meaning of subsection (b)(4) if it singles out railroads for unfavorable treatment as compared to the general class of commercial and industrial taxpayers. –301. The statutory background supports the same conclusion. When Congress enacted the 4–R Act, it was apparent that railroads were “easy prey for State and local tax assessors in that they are nonvoting, often nonresident, targets for local taxation, who cannot easily remove themselves from the locality.” (internal quotation marks omit­ ted). Subsections (b)(1) through (3) thus “establish a political check” by preventing States from imposing exces­ sive property taxes on railroads “without imposing the same taxes more generally on voting, resident local busi­ nesses.” Subsection (b)(4) is best understood as addressing the same problem in the same way. at 301–302. Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting B Alabama’s tax scheme cannot be said to “discriminat[e] against a rail carrier.” To begin, the scheme does not single out rail carriers. Although one would not know it from the majority opinion, the tax is not directed at rail carriers, their property, their activity, or goods uniquely consumed by them. t is instead a generally applicable sales tax. t applies (with other exemptions not at issue here) to all goods purchased, used, or stored in the State of Alabama. –23–2(1), 40–23–61(a) The only relevant good exempted from the tax is diesel on which the motor fuel tax has been paid, 325(b), and no provision of law prevents rail carriers from buying such diesel. See Brief for Respondent 46, n. 13 (acknowledging that CSX pays the motor fuel tax on the diesel fuel it uses in trucks and other on-road vehic- les). Water carriers, it is true, enjoy a special carve-out from this sales tax, (Cum. Supp. 2014), but that exemption singles out water carriers, not rail carriers. Even if this constellation of exemptions to Alabama’s sales tax could be said to single out rail carriers from the general class of their interstate competitors, the tax surely does not single out rail carriers as compared to commercial and industrial taxpayers. Those taxpayers are subject to exactly the same generally applicable sales and use tax regime as are rail carriers. A The Court started off on the wrong track in CSX when it relied on a generic dictionary definition of “discrimi­ nates” in the face of a statutory context suggesting a more specific definition. See Today’s decision continues that error. The Court uncritically accepts the conclusion that the 4 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting “discriminat[ion]” addressed by the statute encompasses any distinction between rail carriers and their comparison class, ante, at 4, as opposed to mere “singling out” or some­ thing in between, even though the word “discriminates” is ambiguous in that way. CSX The Court’s usual practice has not been to treat the meaning of “discriminates” so casually. See generally Guardians Assn. v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 590–593 (1983) (opinion of White, J.) (discussing the Court’s shifting definition of the ambiguous term “discrimination”). Today’s decision compounds this error by holding that a rail carrier may make out a claim of discrimination using any comparison class so long as that class consists of “individuals similarly situated to the claimant” rail carrier. Ante, The majority purports to derive this limita- tion from the dictionary, but then finds itself unable to proceed: After all, Black’s Law Dictionary contains no entry defining what it means to be “similarly situated” for the purpose of subsection (b)(4). Forced finally to turn to the statutory context, the majority rejects the statutorily defined competitor class of commercial and industrial taxpayers in favor of a shifting comparison class of its own creation. B The majority disregards the commercial and industrial property comparison class identified in subsections (b)(1) through (3) because subsection (b)(4) does not explicitly include language from those provisions. See ante, at 4–5, 6–7. t asserts that defining the comparison class for the purpose of subsection (b)(4) by reference to the comparison class identified in subsections (b)(1) through (b)(3) “would require us to dragoon the modifier ‘commercial and indus­ trial’—but not the noun ‘property’—from the first three provisions, append ‘general’ in front of it and ‘taxpayers’ Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting after, both words foreign to the preceding subsections.” Ante, at 7. The majority’s accusation of grammatical conscription misses the point. Subsection (b)(4) is a residual clause, explicitly marked as such by the use of the word “another.” See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, Like other residual clauses, it need not use the same language as the clauses it follows to derive meaning from those clauses. See, e.g., (slip op., at 13); v. United States, 550 U.S. 192, 217–218 (2007) (SCALA, J., dissenting). Where, as here, a residual clause includes an ambiguous word like “discriminates,” we must look to the clauses that precede it to guide our understanding of its scope. n some sense, my task in giving meaning to the statu­ tory term “discriminates” is no different from the major­ ity’s: to determine what type of differential treatment the statute forbids. The first three clauses provide important clues that the statute forbids singling out rail carriers from other commercial and industrial taxpayers because commercial and industrial taxpayers are the ones who pay taxes on “commercial and industrial property.” The major­ ity pursues the same logical train of thought when it opines that “the category of ‘similarly situated’ (b)(4) comparison classes must include commercial and indus- trial taxpayers” because “[t]here is no conceivable reason why the statute would forbid property taxes higher than what that class enjoys (or suffers), but permit other taxes that discriminate in favor of that class vis-à-vis railroads.” Ante, at 6. Where we part ways is in the inferences we draw from the statutory context. Treating subsection (b)(4) as a residual clause does not require the grammatical distortions that the majority alleges. The word “discriminates” in subsection (b)(4) is not a referential phrase whose antecedent is uncertain. f 6 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting it were, then it would be necessary to select an antecedent that would fit grammatically in place of “discriminates.” nstead, look to (b)(1) to (3) merely to clarify an ambigu- ity in the meaning of “discriminates,” a task that does not require me to “dragoon” the language of the prior clauses into subsection (b)(4). Nor does my approach rely on the first three clauses of to supply a general limitation on the independ­ ent prohibition that appears in subsection (b)(4). See United (SCALA, J., concurring in part and dissenting in part) (criticizing this type of argument). That is what Alabama sought to do in CSX when it argued that subsection (b)(4) is limited to property taxes (or their equivalent “in lieu” taxes). Ante, at 7; CSX (majority opin­ ion). joined the majority in rejecting that argument. 97 (dissenting opinion). But whereas there is no un­ certainty about the meaning of “taxes” in subsection (b)(4) that would justify importing the property tax limitation from the three preceding subsections, 84–285 (majority opinion), there is a good deal of uncertainty about the meaning of “discriminates.” This uncertainty justifies looking to the three previous clauses to under­ stand the type of differential treatment is meant to prohibit. –299 (dissenting opinion); see Harrison v. PPG ndustries, nc., 588– 589 (1980). And those three previous clauses easily supply the answer to the comparison class question. C Unwilling to so limit the range of available comparison classes, the majority takes an approach to determining which individuals are “similarly situated” for purposes of the statute that “is almost entirely ad hoc,” 15 (SCALA, J., dissenting). t asserts that the compar­ ison class will “depen[d] on the theory of discrimination Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting alleged in the claim.” Ante, at 4–5. Sometimes the com­ parison class will be “all other commercial and industrial taxpayers,” sometimes it will be “the railroad’s competi­ tors” in a particular jurisdiction, and sometimes it may be some other comparison class entirely. The sole evidence on which the majority relies to con­ clude that competitors are similarly situated, and there­ fore qualify as a comparison class, is the professed pur­ poses of the Act: “to ‘restore the financial stability of the railway system of the United States,’ while ‘foster[ing] competition among all carriers by railroad and other modes of transportation.’ ” Ante, at 6 (quoting (b)(2)). nterpreting statutory text solely in light of purpose, absent any reliance on text or structure, is dangerous business because it places courts in peril of substituting their policy judgment for that of Congress. n considering statutory purpose, therefore, we should be careful that any inferences of purpose are tied to text rather than instinct. The majority throws such caution to the wind. ts two- sentence argument is a perfect illustration of the dangers of a purely purpose-based approach. The majority cherry- picks two of a number of stated goals of a complex piece of legislation over 100 pages long and assumes that this specific provision was assigned to those specific purposes. And then it interprets the statute to perform in the man­ ner the majority believes is best designed to “restore financial stability” and “foster competition.” Ante, at 6 (alteration omitted). have no reason to doubt the economic soundness of the majority’s conclusion that discrimination between rail carriers and their competitors threatens their financial stability and impedes competition, but lack the major- ity’s certitude that is designed to further those goals by combatting that evil, at least in the way the ma­ jority asserts. nstead, the first three subsections provide 8 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting strong textual evidence that was designed to stabilize rail carriers by protecting them from discrimina­ tion against interstate commerce. And they provide evi­ dence of Congress’ chosen mechanism for accomplishing that goal: tying the fate of interstate rail carriers to the broader class of commercial and industrial taxpayers. See The introductory clause of provides further evidence that the evil at which subsection (b)(4) is tar- geted is not discrimination between rail carriers and their competitors, but “acts [that] unreasonably burden and discriminate against interstate commerce.” The majority’s response to this evidence—that the Court rejected a simi­ lar argument when it refused to limit subsection (b)(4) to property taxes or their kin, ante, at 7—is a non sequitur. The introductory clause contains no reference to property taxes that “binds its four subsections together” as prohibi­ tions on discriminatory property taxes. (internal quotation marks omitted). But it does have a reference to discrimination against interstate commerce, which does tie the sections together to serve that common statutory purpose. This, in turn, weighs against the majority’s inferences about how relates to the stated pur­ poses of the 4–R Act. The majority’s conclusion that competitors are a permis­ sible comparison class completely ignores these contextual clues, permitting subsection (b)(4) to serve different statu­ tory goals by a different mechanism than its three prede­ cessor clauses. And it leads to odd inconsistencies. f we were to understand the provision as prohibiting only discrimination between rail carriers and their competitors, then it might well further the goal of promoting competi­ tion between interstate carriers. But the majority instead selects a shifting-comparison-class approach, requiring rail carriers to be treated at least as well as their competi­ tors and any other similarly situated taxpayers. See ante, Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting at 4–5. This most-favored taxpayer status is a position the competitors do not enjoy, so the majority’s position could result in tax schemes that impede competition between interstate carriers rather than promote it. dentifying “similarly situated” taxpayers by the undis­ ciplined approach the majority endorses could well lead to other unanticipated consequences. This is why the policy judgments needed to link statutory mechanisms to statu­ tory purposes are best left to Congress. f this Court is going to adopt a shifting-comparison-class approach to then it should at least demand a stronger textual link between the comparison class a claimant seeks to import into subsection (b)(4) and any purpose that the claimant argues it serves. Because the majority adopts an interpretation of that is not grounded in the text, it should come as no surprise that this interpretation is difficult to apply, as this case demonstrates. t is easy to see how, accepting water carriers as a comparison class, the scheme treats water carriers and rail carriers differently when it grants water carriers, but not rail carriers, an exemption from the sales tax. Ala. Code dentifying the difference in treatment between rail and motor car- riers, by contrast, requires a good deal more imagination. The majority’s approach exhibits that imagination. t glosses over the general applicability of the provisions that apply to rail and motor carriers, stating that “[t]he State applies the [sales or use] tax, at the usual 4% rate, to railroads’ purchase or use of diesel fuel for their rail oper­ ations,” but “exempts from the tax purchases and uses of diesel fuel made by [motor carriers].” Ante, at 1. A quick glimpse at the code reveals that this is not quite the case. The applicability of the sales and use taxes does not de­ pend on the identity of the purchaser, but on whether the 10 ALABAMA DEPT. OF REVENUE v. CSX TRANSP., NC. THOMAS, J., dissenting purchaser pays another excise tax, 325(b), which in turn depends on the nature of the product purchased and its use, §328, 40–17–329, which in turn merely correlates to the carriers’ operations. As far as can tell, the rail carriers use dyed diesel that is exempt from the motor fuel tax—and therefore subject to the sales and use taxes—as a matter of choice rather than necessity. Dyed diesel has no special properties that make it more suitable for use in a train engine; the dye merely identifies it as exempt from the federal excise tax, 322(21). And no law prohibits rail carriers from using undyed diesel. To the contrary, it is the motor carriers who are prohibited from using the dyed variant for on-road use. Assuming arguendo that state law provides that only dyed diesel may be used in rail operations, it becomes a little easier to make an argument that the State treats rail carriers differently in this case. But the majority still faces a line-drawing problem. s it necessary that the good subject to the challenged tax be the same as the good on which the competitor enjoys an exemption? Could a rail carrier that relies on natural gas rather than diesel for motive power make the same claim of discrimination if natural gas is not entitled to the same sales-tax exemption as diesel? s it necessary that the rail carrier and its competitor rely on the good for the same purpose? Could a rail carrier that uses diesel for motive power challenge a hypothetical provision that exempted from the sales and use taxes diesel that motor carriers use for refrigeration in refrigerated trailers? The majority never answers these questions. “Sufficient unto the day is the evil thereof,” it intones. Ante, at 6. “That gets this case off our docket, sure enough. But it utterly fails to do what this Court is supposed to do: pro­ vide guidance concrete enough to ensure that the” statute is applied consistently. 550 U.S., 15 (SCALA, Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting J., dissenting). We have demanded clarity from Congress when it comes to statutes that “se[t] limits upon the taxa­ tion authority of state government, an authority we have recognized as central to state sovereignty.” Department of Revenue of Ore. v. ACF ndustries, nc., 344–345 (1994). We should demand the same of ourselves when we interpret those statutes. Yet after today’s deci­ sion, lower courts, soon to be met with an oyster’s shellful of comparison classes, ante, will have no idea how to determine when a tax exemption that is not tied to the taxpayer’s status constitutes differential treatment of two taxpayers. * * * The majority’s interpretation of (1) derails ambiguous text from clarifying context. The result it reaches is predictably unworkable. And it prolongs Ala­ bama’s burden of litigating a baseless claim of discrimina­ tion that should have been dismissed long ago. respect­ fully dissent